Indict First Interview Later: Durham’s Belated Efforts to Substantiate His Claims that Michael Sussmann Coordinated with Hillary

Among the accusations John Durham made when he charged Michael Sussmann with a single false statement count in September 2021 was that Sussmann had coordinated with the Hillary Campaign.

SUSSMANN, [Rodney Joffe], and [Perkins Coie] had coordinated, and were continuing to coordinate, with representatives and agents of the Clinton Campaign with regard to the data and written materials that SUSSMANN gave to the FBI and the media.

Coordinating with a client is not a crime. Working with a client to share suspicious data with the FBI is also not a crime. Indeed, Sussmann spent a great deal of his time in 2016 doing just that after the Hillary Campaign and several other Democratic Party committees were hacked by Russia.

The allegation that Sussmann “coordinated” with a client is included as one of three materiality claims regarding Sussmann’s alleged lie. To prove Sussmann is guilty, Durham has to prove not just that Sussmann made a willfully false claim to James Baker in a meeting on September 19, 2016, but that it mattered. One way Durham claims he will do that is, first, by proving that this effort was coordinated with the Hillary campaign and then establishing that,

it was relevant to the FBI whether the conveyor of these allegations (SUSSMANN) was providing them as an ordinary citizen merely passing along information, or whether he was instead doing so as a paid advocate for clients with a political or business agenda. Had SUSSMANN truthfully disclosed that he was representing specific clients, it might have prompted the FBI General Counsel to ask SUSSMANN for the identity of such clients, which in turn might have prompted further questions.

One of the first things Sussmann did after being charged was ask — first, informally, and then, via a Motion for a Bill of Particularswith whom on the Hillary Campaign he coordinated.

Fifth and finally, the Indictment conceals the actual identity of certain individuals and entities alleged to have witnessed and otherwise been involved in the conduct giving rise to the false statement charge, including the names of the agents and representatives of the campaign on whose behalf Mr. Sussmann was allegedly working. Id. ¶ 6. The entire animating theory of the Special Counsel’s Indictment is that, in meeting with the FBI and the other government agency, Mr. Sussmann was secretly working on behalf of Hillary Clinton’s 2016 campaign for president (the “Clinton Campaign”). The Special Counsel should be required to identify with which agents and representatives of the Clinton Campaign Mr. Sussmann was allegedly working so that Mr. Sussmann can adequately prepare his defense.

Counsel for Mr. Sussmann previously asked the Special Counsel to provide the detail and particulars identified above, but the Special Counsel declined to do so. The Special Counsel should not be permitted, on the one hand, to allege that Mr. Sussmann was working on behalf of the Clinton Campaign, but on the other hand, decline to identify the specific individuals with whom he was purportedly working.

7 The Special Counsel has identified virtually all of the other anonymous individuals and entities referred to in the Indictment (except, as noted above, the Agency-2 employees).

That motion was filed on October 6. In a response filed on October 20, Durham refused to provide the names of those on the Clinton Campaign with whom Sussmann coordinated, but instead pointed to these paragraphs of the indictment, only one of which even names people from the campaign, and none of which describes Sussmann speaking directly to anyone from the campaign.

d. In or around the same time period [mid-August 2016], SUSSMANN, [Marc Elias], and personnel from [Fusion GPS] began exchanging emails with the subject line, “Connecting you all by email.”


g. Later in or about August 2016, [Rodney Joffe] exchanged emails with personnel from [Fusion GPS].


e. On or about September 15, 2016, [Elias] exchanged emails with the Clinton Campaign’s campaign manager, communications director, and foreign policy advisor concerning the [Alfa Bank] allegations that SUSSMANN had recently shared with [Franklin Foer]. [Elias] billed his time for this correspondence to the Clinton Campaign with the billing entry, “email correspondence with [Jake Sullivan], [name of campaign manager], [name of communications director] re: [Alfa Bank] Article.” [emphasis added by Durham]

On October 20, over a month after indicting Sussmann, Durham was still refusing to name any Clinton Campaign personnel with whom Sussmann had coordinated directly.

That’s why this detail in Sussmann’s response to Durham’s conflict motion matters so much:

[T]he Special Counsel has alleged that Mr. Sussmann met with the FBI on behalf of the Clinton Campaign, but it was not until November 2021—two months after Mr. Sussmann was indicted—that the Special Counsel bothered to interview any individual who worked full-time for that Campaign to determine if that allegation was true.

When Durham refused to answer Sussmann’s requests, in September and October,  to tell him with whom on the Clinton campaign he had been coordinating, Durham still had never interviewed a single Clinton staffer. He first did so in November.

The discovery update submitted on January 25 reveals that that single Clinton staffer remained the sole Clinton staffer Durham had interviewed to that date.

Yesterday, Durham added a securities fraud prosecutor to his team, suggesting he’s going to try to change the theory of his case (I suspect, by suggesting Sussmann’s billing practices show he was trying to hide Rodney Joffe’s role).

But as I’ll lay out, there’s tons of instances of this, where Durham demonstrably failed to do basic investigative work before charging Sussmann five years after a claimed lie.

Update: Sussmann has filed his motion to dismiss. It is entirely a challenge to the materiality of his alleged lie. Motions to dismiss rarely work. He’s got good lawyers and he’s making a solid argument. Of note, he points out that Durham has never claimed that the tip wasn’t true or that Sussmann should have known it was not.

73 replies
  1. Peterr says:

    At what point will someone refer Durham to the DC Bar (or whichever Bar association he belongs to) for disbarment? If he were representing a private client, rather than the DOJ, the words “ineffective assistance of counsel” would be prominent in his history of legal representation.

    I’m only partly joking.

    Missing SOL deadlines.
    Failing to consult within DOJ for materials the DOJ already has in its possession.
    Failing to interview relevant witnesses.
    Not understanding that November 2016 comes before January 20, 2017.

    This is not a comprehensive list, but merely a starting place.

    • gmoke says:

      The level of incompetence in almost every profession that I see these days is astonishing to me. And yet, these professional incompetents (the ambiguity in those two words is definitely meant to be there) retain power and public platforms to exhibit even more incompetence.

      But then I just may be old and grumpy.

      In the early days of Trmp, people were talking about “the cruelty is the point.” My adddendum was “And the incompetence is tactical.”

        • earlofhuntingdon says:

          But, but Rudy is hiding “1000” pieces of “evidence” about Hillary’s crimes in his bedroom! The real deal! Acquired since 2018!

          What the confused and possibly permanently inebriated Rudy might mean is that he hasn’t laundered his sheets since 2018.

      • PeeJ says:

        The incompetency in almost every profession I’ve been involved in is the only thing that keeps me somewhat sane these days. There is no way any of these conspiracies could have worked. Not one person, or group can really be controlling everyone.

        [Welcome back to emptywheel. Your username for 27 previous comments has been “PeeJ.” I am changing the username on this comment from “PJ” back to “PeeJ” because we already have an existing long-term community member “P J.” Please stick to your original username. Thanks. /~Rayne]

        • Glint Breightly says:

          Of course the Trump-Russia conspiracy hoax did not work. That’s why it is unraveling and people like Sussman and Dechenko are being smoked out.

        • Rayne says:

          Because you used a username too similar to an existing member, I missed that this was a trollish comment. I assumed it was P J Evans being snarky but no.

          A person who can run a holding company structure with dozens if not a hundred or more entities can manage a conspiracy especially if he has highly-motivated like-minded assistants.

        • Rayne says:

          Oh today was more fun than usual given the influx of right-wing trolls foaming at the mouth about Durham.

          They’re like, “Leave Durham alone!”


  2. Troutwaxer says:

    “When Durham refused to answer Sussmann’s requests, in September and October… Durham still had never interviewed a single Clinton staffer.”

    “The discovery update submitted on January 25 reveals that that single Clinton staffer remained the sole Clinton staffer Durham had interviewed to that date.”

    I think what you’re trying to say is that Durham interviewed one Clinton staffer between October and January 25th, well after he’d charged Sussman. But both sentences can’t be true.

    The other interesting thing here is that Elias apparently billed for his time, and on that basis Durham is insisting that Sussman billed the Clinton Campaign. It looks like Durham has some basic troubles with reading comprehension. Or am I missing something here?

    • John Paul Jones says:

      s/ It looks like a version of that special branch of argumentation called “conspiracy logic.” If there was a co-ordinated plan between Elias, Joffe and Sussman, then logically it follows that when Elias bills a client he must also be doing so in furtherance of the plan, thus, it’s exactly as if Sussman did the billing himself. Which he did, right? Because they were working together?

      Those of us who are less enlightened might chunter on about confirmation bias, and circular reasoning, but clearly, we are less enlightened, thus, we will never understand the elegance and beauty of the proposition. /s

      If I were a dramatist, these musings would be Durham’s Act V soliloquy, just seconds before the Furies showed up to render him nemesis.

      • emptywheel says:

        Right: This is why I keep saying if he pulls together a conspiracy, the case gets stronger. Because then it doesn’t matter than Sussmann never spoke directly with Hillary, Durham can say that he had an agreement with Elias to make a political stink.

        But thus far he hasn’t charged a conspiracy. To charge a conspiracy, he NEEDS Sussmann to have lied, because he needs everyone to have intentionally hid this. But it’s not clear he can prove that.

        • Brian T says:

          So even the larger conspiracy (whatever that may be) hinges on Durham successfully arguing that Baker’s recollection in 2021-22 of a conversation in 2016 is more certain than it was during intervening years, when Baker recalled the Sussman conversation differently?

        • TooLoose LeTruck says:

          Words like…



          And now…


          I shall definitely add that one to my vocabulary, and of course, look for the appropriate place to unexpectedly drop it in casual conversation…

          “Oh good lord, man, stop chuntering about like that…

          Why are you such an infernal embuggerance?

          Please… go defenstrate yourself forthwith!”

        • Mgallopavo says:

          If you have not kept up your subscription to OED Online or have misplaced your hardbound volume III, I rather like the early citation. It brings forth images of Durham as heifer in my imaginings…

          1599 Master Broughtons Lett. Answered x. 35
          Your heyfer..must..wander alone and chunner out an Heathenish conceit of descending into the world of soules poetically.

    • BobCon says:

      There doesn’t seem to be any problem to me with these sentences being true. By 10/20/21 Durham had not interviewed anyone. In 11/21 he interviewed one. By 1/25/22 that had remained the only interview.

    • Ravenclaw says:

      Of course both statements can be true. He interviewed a single Clinton staff member in November. So he had not interviewed any as of October, but went on to interview exactly one before the end of January.

    • Valley girl says:

      Troutwaxer- “I think what you’re trying to say” is one of the most insulting and condescending phrases one can utter, especially when addressed to grown woman. fyi.

  3. Rugger9 says:

    It’s not clear to me how this helps Durham in his criminal indictment, but following the idea that the publicity is the point for Durham let’s look at this with an eye to how it will be played on the RWNM tonight. Since Durham’s last blast was such a fizzle this has to go better for him, amirite? (Spoiler alert – nope)

    Drinking Words while watching:
    * Hillary and variations on her name
    * Spying
    * Emails (two if they’re HRC’s)
    * Laptop
    * Russiagate and its variants
    * Steele Dossier and its variants
    * AOC and the rest of the Squad, just because

    Feel free to add to the list, but make sure you have tomorrow off. As noted earlier, Sussman can file his dismissal motion Friday and I expect it to be so ordered in short order. This Durham prosecution is show trial stuff worthy of the 1930s Soviet Union.

    • Ginevra diBenci says:

      But *was* Durham’s last blast “such a fizzle,” Rugger9? I can’t watch Fox News, but it seems like the primetime shows have been blaring their twisted and false version of Durham’s February 11 filing non-stop.

        • Ginevra diBenci says:

          Wasn’t the RWNM largely responsible for Trump getting 75M votes in 2020, spreading the Big Lie, and undermining vaccines?

        • Rugger9 says:

          Not entirely, the courtier press had their role as well, with bothsidesing going on until J6. Even Chuckles Todd (who loves a good rumor) passed this up.

        • Ginevra diBenci says:

          The MSM played a much bigger role in Trump get elected in 2016. By 2020 they were in heavy “Trump suggested” mode, meaning they mostly under-reported his gaslighting about how an election he suspected he would lose was going to be “stolen.” But I still think the RWNM, especially if you include Facebook as aggregator/spreader, played a much bigger role in roping many millions into the cult.

  4. John Riley says:

    You seem to ignore Marc Elias. He was general counsel to the Clinton campaign, wasn’t he? And the email evidence suggests coordination with him, doesn’t it?

    • emptywheel says:

      Even pretending that’s true — though the evidence shows that Durham misrepresented the one communication involving Elias directly, meaning Durham has no evidence of that — how is Durham going to pierce privilege discussions between the two?

  5. Badger Robert says:

    Thanks for letting us follow along.
    But where are the witnesses that state the FBI relied on Sussman, or thought these disclosures were material, or that the FBI was even interested, or was incapable of verifying the information?
    It looks like a Seinfeld conspiracy.

    • Dopey-o says:

      It looks like a Seinfeld conspiracy.

      You mean that it’s an entire show about nothing? Then the commercials must be the point.

      • Badger Robert says:

        I cannot envision Jerry, George and Kramer pulling the wool over the eyes of the FBI. And the actual people, Sussman, Joffe and Elias wouldn’t attempt it. Its like a script idea that was cut before filming.

  6. Riktol says:

    >Yesterday, Durham added a securities fraud prosecutor to his team, suggesting he’s going to try to change the theory of his case (I suspect, by suggesting Sussmann’s billing practices show he was trying to hide Rodney Joffe’s role).

    Assuming Durham adds a new charge (instead of replacing the existing one), could Sussman ask for the cases to be tried separately, like Michael Avenatti got his New York crimes split? Which would put Durham back to square 1.

        • timbo says:

          What additional charge are you expecting? I ask because I’m expecting that Durham is just going to make the Federal bench more angry if he adds another charge at this point. The dude has had >years< to investigate this thing and has been… well, because wtf knows what he's been doing with his time up til now because Durham seems to have not done any due diligence in making the first charge against Sussmann as it is.

    • emptywheel says:

      I’ve been trying to puzzle that through.
      It’s POSSIBLE Durham is contemplating false statements wrt the December 2017 testimony, thinking he can prove that mis-billing law firm records amounts to fraud. But at least in his conflict memo, he stops short of thinking he could prove that (for good reason). That would still be just a false statements charge.

      But outside of that, Durham would have to use either conspiracy or something with a longer statute of limitations (as some financial crimes have, but I don’t think that works here) to charge him for the billing, which ended in November 2016.

  7. bawiggans says:

    It seems that the materiality of the alleged lie by Sussman rests on the notion of an FBI that is a bunch of naïfs. I’m not sure the judge is going to buy the idea that Sussman pulled the wool over the bureau’s eyes to the extent that they mounted a huge, politically sensitive investigation as a result. Durham had better get a conspiracy charge tacked on before Friday to put this nonsense in the shade.

    • Troutwaxer says:

      And maybe show that someone was billed/got paid, which I’m still unclear about.

      Also, why shouldn’t a group of people who are aware of a possible crime designate one member of the group to take the evidence to the FBI? If Durham does charge as conspiracy, what was the conspiracy in service of? Conspiracy to report a crime? That doesn’t sound illegal to me.

  8. Traveller says:

    Sigh…every time I come here to visit and be educated I feel guilty…every time, (which is frequent), I pull up an original document to review, I know that Ms. Wheeler had to pay for it. I never see any fundraising or advertisements or anything really on how to support Emptywheel.

    There is this…see on the right:

    I have sent one small amount, and really must do so again. Maybe everyone else contributes and I just don’t know about it…still, I think it important to support this great site that allows a bunch of great posters to post and add their considerable insight also…so the place is valuable and I think everyone should kick in a little every once in a while. Not necessarily often…but something.

    Lastly, I often disagree with bmaz and Ms Wheeler, especially on the pace of investigations going forward and the probable ill advised choice of Mr Garland for DOJ…but honorable people can honorably disagree…(though I freely acknowledge that the law I practice is different and far below that of Ms Wheeler…still we can disagree event though she is smarter and more precise than I ever am), and I feel this obligation to do something to help support a great resource.

    So send something, will `ya?

    Best Wishes, Traveller

    • Phamquat says:

      I sent a check to the listed address on 1/20/22 but it has not yet cleared. This is an important site even if I don’t understand legalese. It does seem that the noose is tightening.

        • emptywheel says:

          It takes a bit of time to transfer bc it’s all remote, since I’m in Ireland. It has been a priority in recent days.

          Thanks for the support!

    • Leoghann says:

      I absolutely hate to find out that some funding service has highjacked 30%-40% of my donation for “service charges.’ So I asked, in a thread like this, what the best way to donate was. Marcy told me it was best to donate to the site, directly through Patreon. That’s what I did, and they automatically deduct my paltry sum from my bank account on the first of every month. The easiest way is to go to “SUPPORT” up there in the box on the right, and click one of the “subscribe” links at the bottom of that page. That sets you up for a regular donation via PayPal.

  9. PieIsDamnGood says:

    >Had SUSSMANN truthfully disclosed that he was representing specific clients, it might have prompted the FBI General Counsel to ask SUSSMANN for the identity of such clients, which in turn might have prompted further questions.

    This is what I call “heroic assumptions” a nice way to say bullshit.

  10. CD54 says:

    Remember, it only has to be packaged at a 4th grade level so Fox News can feed it to the MAGAt audience.

    The Murdochs, Trump, FedSoc, McConnel, et al must see their voters as flying monkeys. It’s just too easy.

  11. glenn storey says:

    so, on a scale of 1-10, how bullshitty is the durham report? Or does it reach nigel tuffnel territory?

      • rattlemullet says:

        Respectfully, I am at a complete loss. If Durham is an 11 how does he stay employed? By what mechanism is he employed that he cannot be removed? Why is this type of filing incompetence tolerated. Through out this entire process, bullshit filings are struck down consistently with today very little repercussion to the attorneys that file them. Has the judicial process always been this lenient toward frivolous filings? I have been in the construction industry for 50 plus years such incompetence gets weeded out pretty quickly. I guess construction is more of a fact based industry than the interpretation of the words of law.

    • Troutwaxer says:

      My fantasy is that the guys who made Spinal Tap get together and make a movie about a Republican run for the presidency.

      • TooLoose LeTruck says:

        Now, THAT would be fantastic…

        Wasn’t there a point at which Trump gave himself a 10 as a score?

        He did!

        “President Trump told reporters Monday that he would rate his administration’s response to the coronavirus a 10 on a scale of 1 to 10.

        “I’d rate it a 10,” Trump said at a White House press briefing Monday when asked by a reporter how he would rate his response to the pandemic.”

        (via The Hill, 3/16/2020… Google is your friend)

        I kept waiting for him to decided he deserved an 11, but no, modesty prevailed…

        Remember Bullworth, w/ Warren Beatty rapping?

  12. Ben Soares says:

    IMHO Durham has kicked the proverbial bee’s nest, with these server discussions ….I have a sneaking suspicion he will regret it. He seems to have created a vacuum of sorts ..I wonder who might fill it….

  13. BobCon says:

    I’ve been pleased, but also puzzled, by the mainstream press reaction to Durham’s latest. It’s been unusually quick, unified, and dismissive of his work. This is usually reserved for attacks on Democrats, and I’m wondering what’s up.

    I think back to the deferential, respectful response to Barr’s nonsensical summary of the Mueller Report or the Nunes Memo, and how carefully the DC press was prepped ahead of time, versus the confused and equivocating viewing of impeachment revelations through a horserace lens.

    That’s largely missing with the latest Durham release, and there’s also considerable calling out of Fox, which isn’t usually their style.

    I suppose it’s theoretically possible they’ve learned their lesson and started being journalists, but I’ll wait for a lot more proof. I wonder what else could be at work. Are the regular GOP background sources signalling a break with the conspiracy freaks? Have top editors taken a hint from Mazars that a balance is shifting? Have the Democrats finally invested in a better PR outfit?

    I’m not complaining, but I don’t get it either. There are usually a lot more institutional barriers to honest reporting on GOP spin campaigns which openly refer to them as spin.

    • MB says:

      Charlie Savage has been on multiple outlets lately doing his best to sound factual and dignified while essentially saying “This is nuts!”. It is interesting to watch…and a little bit refreshing.

      • BobCon says:

        I’m interested in how he seems to own the story at the Times right now and not Michael Schmidt, who has done some reporting on this beat from a typical “sources say” political perspective, or even Ken Vogel (rolls eyes) who has gotten his hands on it in the past.

        Savage has written a lot, along with Adam Goldman, but editorial assignments seem to shift there for mysterious reasons to reporters like Schmidt who give vastly more credence to right wing spin.

        Savage being given space on the news pages to directly call out the right wing spin machine, including Fox, is not how the Times usually operates. I don’t know if this lasts, but any hint of a shift at the Times is welcome.

  14. Margo says:

    Too many think through their label filters which end up being emotional. Left and Right. I worked in the unelected administrative state government. They don’t care which party is in power. They are in power. They have their fiefdoms going back to 1947 (1911?). They begat…always. They metastasize. They fight each other then circle the wagons when they have to.

    Creating a new government agency to do honorable work, done with integrity lasts about three years. Then it changes to protect the unelected government managers.

    I’ve read so many “investigative” reports, “audit” reports in my time in state government. It’s always the same pattern. They go nowhere in holding government accountable. Durham is old school, longtime administrative state unelected government manager.

    I never expected Durham’s investigation to go anywhere.

    It’s like what Truman said about Ike and the administrative state when Ike was getting ready to take office. When contemplating General Eisenhower winning the Presidential election, Truman said, “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike—it won’t be a bit like the Army. He’ll find it very frustrating.”

    There’s a reason our founding fathers didn’t put political parties into the US Constitution.

    More and more Americans are disgusted with both major political parties.

    • TXphysicist says:

      The idea of Trump’s unelected DoJ appointees and the Biden-appointed or Obama era holdovers circling the wagons to protect each other is pretty funny. Thanks.

      And who can forget the, uh, “ineffective” Mueller investigation, which ensnared several top Trump gov’t and campaign acolytes, requiring objectively embarrassing pardons after the insurrection attempt?

      Trust me, I loathe the corporatist dems. And I know bureaucracy can often be inefficient and obstructive. But please take your bothsides’ing, enlightened centrist perspective somewhere else, because one side has gone full blown fascist, while the other is… allegedly equally complicit in administrative boondoggling, or something? I don’t think that’s correct; One party notoriously sabotages government after assuming their positions inside of it.

      Another thanks, btw, for making a case in favor of your own unemployment.

      What a weird comment.

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