John Durham Drops Claim that Rodney Joffe “Mined” EOP Data for Derogatory Information on Trump from Boilerplate

On Friday, John Durham’s team did two things. Publicly, they responded to Michael Sussmann’s motion to dismiss his indictment. I’ll deal with both those later, but the short summary is that Sussmann argued his alleged lie could not have been material, whereas Durham (predictably) cited precedent saying that’s a matter for the jury to decide.

Under seal, Durham’s team responded on Friday to a sealed motion to intervene in the Sussmann case and expunge references filed by Rodney Joffe’s attorneys.

Presumably, Joffe objected to the unsubstantiated and uncharged claims that Durham had made in a conflicts motion that led the former President to suggest Sussmann and Joffe should be put to death.

We may not find out about the substance of this dispute for some time. But it may already be reflected in Durham’s filings.

In his response to Sussmann, Durham obstinately repeated most of the inflammatory claims first floated in the conflicts memo that elicited the calls for death and other lies from Durham’s sources and witnesses. But there are two passages that Durham took out.

Durham removed the two passages italicized below.

The Government’s 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 Trump’s Central Park West apartment building, and (iv) the Executive Office of the President of the United States (“EOP”). (Tech Executive-1’s 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 EOP’s 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 Government’s 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 Trump’s 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 Counsel’s Office has identified no support for these allegations. Indeed, more complete DNS data that the Special Counsel’s 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. 

The second of these passages was an innumerate claim that falsely suggested Russian YotaPhones were common in the United States because between 2014 and 2017, there had been three million such look-ups. As William Ockham explained, these three million look-ups aren’t much more than his own family’s DNS requests during the same four (or even three) year period.

Contra Durham, 3 million DNS requests for a related IP addresses over a four-year period means these requests are very rare.

For comparison purposes, my best estimate is that my family (7 users, 14 devices) generated roughly 2.9 million DNS requests just from checking our email during the same time frame. That’s not even counting DNS requests for normal web browsing.

This seeming concession that Durham was wrong makes the other removal especially interesting, particularly given Joffe’s motion to intervene.

Durham also removed a passage claiming that Joffe “exploited” his access to data from the White House “for the purpose of gathering derogatory information about Donald Trump.”

Remember, the data in question all preceded January 20, 2017. Even assuming “exploit” and “mine” are the appropriate verbs here, to suggest accessing data from before Trump became President was an effort to obtain derogatory information on him makes no sense. And the inclusion of Spectrum Health in all of this — for which people made baseless claims about the DeVoses — is further proof that Joffe wasn’t looking for derogatory information. He was looking for anomalies, and those anomalies ended up implicating Trump-related servers. Plus, even if Joffe were accessing just Trump-related data, finding some unexplained Russian traffic would normally be seen as a risk to Trump, not a political attack on him.

Durham claims he didn’t say anything in the conflicts memo that needed to be struck. That issue (and the claimed conflict) will be reviewed at a hearing on Monday. But in the meantime, Durham already dropped two claims.

30 replies
  1. JVO says:

    Nothing like a last moment clean up of the record being argued with the Judge.
    I fully expect something akin to: “We unsaid that, your Honor.”

  2. eskimo says:

    Evidently, Putin will stage a catastrophic sabotage of the 2022 midterm elections. That’s a key factor in the timing of the terrorism in Ukraine, and the abject psychosis within the Russian state now. Each day that NATO stands by inactive adds years, generations, to the recovery of democracy, peace, and freedom. Each day the Putin regime exists threatens the air we breathe, it threatens the water and life cycles on earth. Destroy the Russian mafia police state completely. Russia must not be allowed to draw and quarter humanity on its inexorable road to perdition.

    • Rayne says:

      Your comment is off topic and unrelated to the post. There are other threads still open in which you could have posted this.

      Community members: please don’t respond here except on topic. Thank you.

  3. timbo says:

    I sure hope the judge starts askin questions of Durham and his so-called “investigation” here. How is it that these things are put into a court filing and then removed when the person receiving death threats based on these things officially complains about it to the court? Heck, if I were Garland or the IG, I’d start an investigation of Duham’s investigation based on what we’ve seen here already… this is one shoddy set of court filings and bassackwards goings ons.

    • joel fisher says:

      The sad fact is if Garland lays one finger on Durham the TFG will howl bloody murder. Besides, leaving him alone to self-immolate looks way better. Of course, if the Judge were to ask–in Judgese–WTF? You couldn’t criticize Garland for that.

      • Marinela says:

        Still hard to disregard such waist of tax payers resources.
        So much for small government, republicans!

        It is ok to use tax payers money for shady political advancement, but don’t you dare use the government to help improve the lives of the common guy.

        • timbo says:

          This. Apparently, this is the services that we’re not being deprived of? Ugh. Durham is basically shilling for Twitler and his Twisslerings, nothing else. The effect of this investigation is to stop people from reporting tips to the FBI if the tip is close to someone running for national office… that’s a very bad idea to shutdown those sorts of tips…unless you don’t want anyone to know who is spying for other countries and maybe running for Senate, Congress, President, etc.

    • Thomas says:

      Oh yes
      Let us investigate the investigator who is investigating the investigators.
      I think I could write a Kafkaesque short story that would only be marginally more farcical than Durham’s real investigation.

  4. WilliamOckham says:

    Of course, none of the allegations recycled from the conflicts filing have anything at all to do with the materiality of Sussman’s alleged false statement to the FBI, the ostensible reason for this filing. “Durham allegation” is synonymous with gratuitous bullshit.

    • TooLoose LeTruck says:

      That may be true, but you have to admit, the man does rock a mean ‘stache and beard…

      • Charles Wolf says:

        Regarding Durham’s moustache, he looks like the average goateed, dead, anti-vaccine idiot they like to feature over at Sorryantivaxxer dot com

      • WilliamOckham says:

        I’ve been very hesitant to admit this … my mustache and beard is exactly the same salt and pepper shade and the same basic shape as Durham. Mine is a little less … flamboyant. On top of that, I wear the same style of glasses as he does. If there’s ever an emptywheel[.]net Winter Solstice party, I call dibs on playing John Durham.

        Maybe I should do one of those TikTok things where William Ockham (played by me) explains DNS to John Durham (also played by me).

        • TooLoose LeTruck says:


          You really cracked me there, William…

          I keep having this… image? hallucination? Durham’s alone in an elevator… that comes to a halt… the doors slide open… and there’s John Bolton…

          The two men trade steely glances… and then after an interminable silence… have a ‘stache-off… (kind of like break dancing)…

    • jhinx says:

      Of course, none of the allegations recycled from the conflicts filing have anything at all to do with the materiality…

      Was thinking the same thing: besides the point. Would like to see a judge admonish him for wasting the court’s time.

  5. WilliamOckham says:

    The two claims that got dropped were deliberately misleading and intended as character assassination of Joffe. I make that point about the second of the two here:

    This is a special prosecutor engaging in outright character assassination of someone who hasn’t been charged with a crime.

    The fact that he stuffed them into a conflicts filing and appears to be retreating from them now should give everyone a better read on Durham’s character.

    • Leoghann says:

      But we received indisputable evidence just last week that Durham is a prosecutor’s prosecutor!!!!1!

  6. Badger Robert says:

    Will all mention of Joffe be stricken as too prejudicial to Joffe and the defendant and not material to any issue in the prosecution?
    This type of behavior seems like it will be reported to the IG, as others have mentioned.
    Will the court demand some evidence that the misleading statements are material? I don’t know what limits he put on the prosecution’s case on that issue, but I suspect there will be limits. The defendant has a right to have a prosecution that is based on nothing more conspiracy theories dismissed. Just arguing that its an issue for the jury doesn’t seem sufficient to me.
    The experts disagree, but I think the court begins to find a way to knock this off the docket
    In the context of the invasion of Ukraine, all these security concerns stand in an entirely different context.

  7. Leoghann says:

    It’s my understanding that the removal of those two blocks of text before the hearing basically makes them disappear, as though they’d never been there. If so, I’d say Durham had his Patel-channeling, propagandist minions remove those two portions because he knew from the beginning they were specious and prejudicial. This way, he won’t have the additional public embarrassment of being called down as the judge strikes them.

    • John Paul Jones says:

      I know this is pointing out the obvious, but while it’s great that the BS has been wiped up, nonetheless, the stain remains because Durham successfully injected it into the news cycle.

    • timbo says:

      Nah. It was there once and isn’t forgotten. It’s just being removed from the case at hand. The question is…why was it in there in the first place?

      And will the Federal court look into how the Federal court system is possibly intentionally being used to gin up potential violence against ancillary witnesses in spying investigations via Durham’s hamhanded attempt to whitewash Twitler’s connection with Russia?

        • timbo says:

          What if one of the folks under investigation was killed by a vigilante as a result of this sort of nonsense that Durham has been pushing in these filings?

          • bmaz says:

            First off, let’s not ever suggest such a thing here. But, no would still have prosecutorial immunity. Seriously, people need to quit this bunk and get a grip.

  8. Alan K says:

    It seems like Durham team is mainly working on talking points for the elections that can be portrayed as having a DOJ imprimatur.

    So I wonder: is there a calculation at the Merrick Garland level where the backlash from ending the Durham program is less than the need to preserve the political reputation of the DOJ?

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