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John Durham’s Show Trials: A Preview of Coming Attractions

August 10, 2025/12 Comments/in emptywheel /by emptywheel

On May 20, 2022 — a year after John Durham had obtained evidence showing that the draft SVR report that he always claimed was the basis of his investigation was based on “composite” emails, and as such, proof that the SVR was framing Hillary Clinton — his lead prosecutor, Andrew DeFilippis, openly defied a judge’s order. DeFilippis instructed Hillary Clinton’s former campaign manager, Robby Mook, to read a quote from Jake Sullivan about the Alfa Bank anomalies saying, “This secret hotline may be the key to unlocking the mystery of Trump’s ties to Russia. It certainly seems the Trump Organization felt it had something to hide, given that it apparently took steps to conceal the link when it was discovered by journalists.”

The quote seemed to confirm the conspiracy theory that Durham had otherwise failed to substantiate, that Hillary had a plan to frame Donald Trump.

The inclusion of the Tweet as trial evidence immediately created a firestorm among credulous journalists, leading right wingers, including Elon Musk, to claim this was proof of “an elaborate hoax about Trump and Russia.”

DeFilippis’ stunt introducing prejudicial hearsay he had just been ordered to exclude led to a redaction of the transcript and Tweet he contemptuously had Mook read. But, as Sussmann’s lawyer complained after Durham’s team pulled several more stunts like this, “the bell” of hearing prohibited testimony, “can never be unrung.” By cheating, Durham’s team presented six elements of the conspiracy theory based on the SVR attack on Hillary to the jury, in spite of rulings prohibiting them from doing so.

It didn’t help his case; less than two weeks later, a jury returned a humiliating acquittal, the first of two.

Yet Durham broke the rules to tell his manufactured story, and it worked in the public sphere.

Trump prosecutors already staged show trials

The prosecution of Michael Sussmann should never have gotten that far. Once Durham had the evidence to conclude that the emails behind the draft SVR report he claimed to be working off of were “composites,” he should have closed up shop. Instead, he charged Michael Sussmann and Igor Danchenko in an effort to sustain the story imagined by Russian spies five years earlier anyway.

Durham’s goals with Danchenko were modest (and fairly pathetic): to attempt to rewrite the genesis of the Steele dossier to make the business networking of a Democrat — and not Russian sources — the author of key claims in the dossier, and to attempt to turn Sergei Millian into the victim of the Steele dossier. After the judge in the case threw out one charge because Durham had charged Danchenko for lying about the pee tape in a literally true response he gave to an FBI question, the jury acquitted on four other counts pertaining to Millian.

Durham’s goals with Sussmann were far more ambitious: to use a single invented false statement as a lever to get inside Democratic networks to find the conspiracy that — even after concluding that the genesis of his entire investigation was an SVR fabrication — Durham nevertheless still believed had to exist.

It was utter madness. It was an egregious abuse of Sussmann’s rights — as I said here, Durham committed the precise crime that he claimed to be hunting. And it serves as a roadmap for where the sequel investigation Pam Bondi just announced might go.

In part because it serves as a roadmap for the stunt prosecutions Trump is ordering up, I want to take two posts to describe what happened. This post will use known interviews and my coverage of both cases — see also this earlier post attempting a similar project — to review the tactics Durham used to get this case to trial. In a follow-up, I hope to show how Durham’s show trials failed.

Pivot

What should have been the two final interviews on Durham’s Clinton conspiracy conspiracy theory investigation — the July 21 interview in which Julianne Smith disclaimed any knowledge of the Clinton plan and a July 8 2021 grand jury appearance where Peter Strzok denied receiving a referral mentioning it — happened almost five years after the events in question. The clock on any 5-year state of limitation was ticking.

So Durham pivoted.

The closest Durham came in his report to offering an explanation for why he continued after concluding these documents were fabricated came from speculation offered up by Brian Auten, the lead analyst on the team (and a MAGAt target ever since). At a time Durham knew he had no proof that the CIA referral to FBI had actually gotten to the Crossfire Hurricane team, he invited Auten to speculate.

Auten stated that it was possible he hand-delivered this Referral Memo to the FBI, as he had done with numerous other referral memos,419 and noted that he typically shared referral memos with the rest of the Crossfire Hurricane investigative team, although he did not recall if he did so in this instance. 420

[snip]

For example, Brian Auten stated that he could not recall anything that the FBI did to analyze, or otherwise consider the Clinton Plan intelligence, stating that it was “just one data point.”423

419 OSC Report of Interview of Brian Auten on July 26, 2021 at 13.

420 Id.

[snip]

423 OSC Report of interview of Brian Auten on July 26, 2021 at 13.

That interview was on July 26, 2021, at precisely the moment Durham should have packed up and gone home.

But consider the circumstances of that interview. At the Danchenko trial, Danchenko’s attorney Danny Onorato started his cross-examination of Auten by getting the FBI analyst to recall how — after his testimony in numerous other investigations was deemed credible — Durham started his first interview with Auten by informing him he was considered a subject of the investigation. (In that interview and one shortly thereafter, Durham seems to have used the threat of charges relating to the Carter Page FISA warrants to threaten Auten and one of the Crossfire Hurricane agents, precisely the theory of criminality that his investigation started to violate in those days.)

Q Does July 26 of 2021 sound fair?

A Yes, it does.

Q Okay. And when you met with them for the first time after you were meeting with people for 25 or 30 hours, did your status change from a witness to a subject of an investigation?

A Yes, it did.

Q Okay. And in your work for the FBI, has anyone ever told you that you are a subject of a criminal inquiry? A No.

Q Was that scary?

A Yes.

Hours later, after having walked Auten through a long list pertinent things Durham had not shown Auten when soliciting specific answers that incriminated Danchenko, including part of Auten’s own notes that he had underlined, Onorato got Auten to concede that his opinion about the credibility of Danchenko on the topic of Sergei Millian changed after that July 26, 2021 interview, in which he had been named a subject.

Yet even in that context, under threat of prosecution, Auten had no real memory of the referral and treated it as a data point if he actually did share it with Crossfire Hurricane. That’s what Durham rebuilt his debunked investigation on.

And having thus scripted an excuse to continue, Durham charged Sussmann on the very last day possible, September 16, 2021; he charged Danchenko in early November. As I wrote in those contemporaneous posts, both used ticky tack alleged lies to spin networked materiality claims insinuating a conspiracy that led sloppy journalists to adopt larger claims of conspiracy.

The belated investigation into false statements charged as a conspiracy

In the Sussmann case, Durham had been poring through subpoenaed documents from participants he imagined had played a part in his theory of conspiracy for over a year, but neither that nor immunized testimony from David Dagon in August had confirmed key premises of his conspiracy. Having failed to substantiate a conspiracy, then, Durham charged a different crime, a false statement charge. Such a belated change in prosecutorial strategy might explain how epically unprepared Durham was to prosecute the crime he actually charged. In the weeks and months that followed, Durham would serially confess he hadn’t taken some of the most basic investigative steps before indicting Sussmann, including:

Interviewing any full-time Clinton campaign staffer before accusing Sussmann of coordinating with the campaign (he would interview Jennifer Palmieri, Jake Sullivan, Victoria Nuland, James Clapper, John Podesta, and — just days before jury selection — Hillary Clinton in the eight months that followed); Durham’s report doesn’t reflect a Robby Mook interview; he was called as a defense witness at trial
Repeating FBI’s 2016 errors in belated interviews of DNS-related service providers
Testing the story Sussmann told Congress, under oath: that he reached out to the FBI to alert them to a story before the NYT covered it, which turned out to be confirmed by documentary records Durham only belatedly found at FBI
Learning how closely the FBI worked with Rodney Joffe on DNS-related issues
Checking how closely Michael Sussmann worked with the FBI, especially on the response to the Russian hacks; this was especially egregious as it debunked one of the ways he tried to implicate Julianne Smith in a made-up plot
Finding the January 31, 2017 CIA meeting record at which Sussmann clearly explained he was sharing an allegation at the request of a client
Finding notes from a May 2017 that debunked Durham’s accusations
Asking DOJ IG for evidence from their closely related investigation
Discovering a similar DNS tip that Sussmann had anonymously shared with DOJ IG on behalf of Rodney Joffe
Obtaining two James Baker phones, one of which Durham had been informed about years earlier
Subpoenaing or seizing Baker’s iCloud account for the text which would debunk Baker’s early memories and confirm Sussmann’s explanation
Searching FBI records for evidence that someone else — someone who once claimed to work for a Russian front company — had played a role Durham attributed to his conspirators

In short, Durham had little to sustain his 27-page indictment beyond theories of conspiracy that assumed as true the conspiracy theory he should have abandoned in July.

It really seems like, before that, Durham believed he would eventually find witnesses to a conspiracy who would confirm what only he believed to be true, and as a result never took the investigative steps that might — and did — debunk his conspiracy theory.

After embracing Russian disinformation, Durham embraced Russian grievances

One way Durham attempted to compensate for his failure to take very basic investigative steps was to embrace what Russians were peddling.

There were always hints that Durham went seeking (dis)information from Russians or people assumed to be Russian-assets involved in this operation. They was the famous junket to Italy looking for Joseph Mifsud. There were Ukrainians, who remain unnamed, but whose identity might explain why Durham reacted oddly when Andrii Derkach’s allies were sanctioned in early 2021. There’s even an email showing that future Charles McGonigal defense attorney Seth DuCharme treated Andrew McCabe request for help from Oleg Deripaska as an investigative lead, an email that might explain why Durham suppressed Deripaska’s centrality in this story.

But after he charged these flimsy indictments, Durham made purportedly aggrieved Russians a key prong of his strategy to turn a debunked Russian effort to frame Hillary into criminal prosecutions.

On the Danchenko prosecution, Durham insanely initially relied solely on Sergei Millian’s Tweets to substantiate the four charges associated with Millian. He did so without first interviewing George Papadopoulos, whom Millian seemed to be cultivating in precisely the period when Durham’s conspiracy theory was born and for months thereafter. As soon as I noted how problematic that was, Millian started getting squirrely.

Durham did eventually interview Millian, three months after charging Danchenko. But Millian refused to show up and answer questions under oath.

That left Durham stuck trying to admit inadmissible evidence, without which he was left with no substantive evidence for those four charges. All the while, Millian was ginning up the frothers, including (as we’ll see in my follow-up), to spin up Durham’s own misleading claims.

When Onorato introduced evidence of Millian’s communications with Papadopoulos at trial, Durham protested, “it certainly sounds creepy.” Nevertheless, Durham built four charges of an indictment around the Twitter claims of a guy involved in creepy outreach even before SVR’s imagined Clinton conspiracy was born, creepy outreach that by itself debunked the Russian conspiracy theory.

The way Millian handed Durham his ass would be funny if it didn’t totally upend Danchenko’s life.

But the way Durham piggybacked on Alfa Bank’s lawfare (lawfare pursued long after Mueller described how Vladimir Putin would make demands of oligarchs like Alfa Bank’s Petr Aven) is more troubling. In dual lawsuits in FL and PA, Alfa Bank purported 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 could sue those people. Rather than finding anyone to sue, however, it instead spent its time subpoenaing experts to learn as much as it could about how the US tracks DNS records to prevent cyberattacks by — among other hostile countries — Russia.

After the Sussmann indictment, Alfa deposed several people targeted in the Sussmann investigation, including Fusion GPS tech person Laura Seago (from whom Durham ultimately obtained immunized testimony at trial) and Rodney Joffe (who was one of Durham’s key targets). Durham used that information as a sword in later privilege fights, but ignored sworn denials of key parts of his conspiracy theory. When Alfa pushed to accelerate this process even in spite of the ongoing criminal investigation, DC Superior Judge Shana Frost Matini observed that claims in the Alfa Bank lawsuit and Durham’s indictment see like, “they were written by the same people in some way.”

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

In the Sussmann case, Durham seemed to be delaying steps he took much earlier in the Danchenko prosecution, as if he was waiting for Alfa Bank to do that work for him.

All that ended with the Russian invasion of Ukraine and the sanctioning of Alfa Bank, which seemed to lead Durham to adopt a new strategy.

The Rodney Joffe statute of limitation

Two pieces of background are useful — particularly if Sussmann’s prosecution serves as a lesson of how Pam Bondi might try to wrench new prosecutions out of these same old tired events.

First, Durham went to great lengths to sustain his ability to charge Rodney Joffe, the source of the DNS records in question, which led Judge Charles Cooper to make a shitty ruling preventing Sussmann from calling Joffe to provide testimony that would entirely exonerate him. Durham was doing so, transparently, in hopes he might charge Joffe for a crime with a longer statute of limitations than lying: defrauding DOD.

But the successful bid to keep Joffe off the stand implicated something else: Durham’s attempt to suppress things he had discovered about the DNS data in question.

The month before Durham charged Sussmann, by mid-August, 2021, Durham’s team learned that the data Rodney Joffe and others used to conduct their research was absolutely real. In addition to debunking the most simplistic “DNC fabrication” theories Durham was chasing, the discovery made it impossible for Durham to continue to rely on the expert his team had been using.

The first thing Durham did in response was ask one of the two FBI agents who had fucked up the investigation in 2016 — the other of whom is a possible source of Durham’s false claim that the SVR conspiracy theory about Hillary claimed she was going to fabricate evidence against Trump — to serve as an expert to replace the one who knew Durham’s theories were false.

DeFilippis. How familiar or unfamiliar are you with what is known as DNS or Domain Name System data?

A. I know the basics about DNS.

[snip]

Berkowitz. And then, more recently, you met with Mr. DeFilippis and I think Johnny Algor, who is also at the table there, who’s an Assistant U.S. Attorney. Correct?

A. Yes.

Q. They wanted to talk to you about whether you might be able to act as an expert in this case about DNS data?

A. Correct.

Q. You said, while you had some superficial knowledge, you didn’t necessarily feel qualified to be an expert in this case, correct, on DNS data?

A. On DNS data, that’s correct.

After that, Durham sought out another (legit) expert, but asked him to do a review that deliberately blinded him to what Joffe, through Sussmann, had shared with the government.

The only thing the FBI’s top experts offer to debunk, other than the Tor node claim that the FBI knew the researchers had dropped, was a complaint about visibility. But their complaints about visibility were entirely manufactured by the scope of the review Durham requested and possibly by the curious status of the Blue Thumb Drive, as well as (if Durham is telling the truth about these being the same experts) willful forgetting of a review they had done on related issues less than a year earlier.

Durham created this blindness. By ensuring all the experts remain blind to visibility, Durham ensured the review would conclude that the researchers didn’t have the visibility that, the FBI knew well, they had.

So in parallel with Durham’s efforts to sustain an SVR hoax he had debunked in July 2021, he went to great length to invent false claims about real data to sustain a judgement from the two FBI Agents who fucked up this investigation in the first place. He did so at the last minute, long after he should have finalized his plans for expert witnesses.

Abusing privilege

He did one more thing at the last minute: he asked Judge Cooper to review a documents for privilege.

As NYT reported back in 2023, Durham started playing games with his DC grand jury not long before he concluded the entire SVR thing was a fabrication. After then-Chief Judge Beryl Howell rejected a bid to get a warrant for Leonard Benardo’s emails, they obtained them via the Open Society Fund directly, perhaps on threat of subpoena.

Mr. Durham set out to prove that the memos described real conversations, according to people familiar with the matter. He sent a prosecutor on his team, Andrew DeFilippis, to ask Judge Beryl A. Howell, the chief judge of the Federal District Court in Washington, for an order allowing them to seize information about Mr. Benardo’s emails.

But Judge Howell decided that the Russian memo was too weak a basis to intrude on Mr. Benardo’s privacy, they said. Mr. Durham then personally appeared before her and urged her to reconsider, but she again ruled against him.

Rather than dropping the idea, Mr. Durham sidestepped Judge Howell’s ruling by invoking grand-jury power to demand documents and testimony directly from Mr. Soros’s foundation and Mr. Benardo about his emails, the people said. (It is unclear whether Mr. Durham served them with a subpoena or instead threatened to do so if they did not cooperate.)

Rather than fighting in court, the foundation and Mr. Benardo quietly complied, according to people familiar with the matter. But for Mr. Durham, the result appears to have been another dead end.

A month before trial (and just weeks after the newly sanctioned Alfa Bank gave up its lawsuits), as part of a request that Cooper review the privilege claims that the Democrats, Joffe, and Fusion had made, Durham revealed he had been bypassing Howell.

In response, Sussmann accused Durham of abusing the same grand jury process he abused with Benardo (abuse, ironically, that debunked Durham’s conspiracy theory).

First, the Special Counsel’s Motion is untimely. Despite knowing for months, and in some cases for at least a year, that the non-parties were withholding material as privileged, he chose to file this Motion barely a month before trial—long after the grand jury returned an Indictment and after Court-ordered discovery deadlines had come and gone.

Second, the Special Counsel’s Motion should have been brought before the Chief Judge of the District Court during the pendency of the grand jury investigation, as the rules of this District and precedent make clear.

Third, the Special Counsel has seemingly abused the grand jury in order to obtain the documents redacted for privilege that he now challenges. He has admitted to using grand jury subpoenas to obtain these documents for use at Mr. Sussmann’s trial, even though Mr. Sussmann had been indicted at the time he issued the grand jury subpoenas and even though the law flatly forbids prosecutors from using grand jury subpoenas to obtain trial discovery. The proper remedy for such abuse of the grand jury is suppression of the documents.

Fourth, the Special Counsel seeks documents that are irrelevant on their face. Such documents do not bear on the narrow charge in this case, and vitiating privilege for the purpose of admitting these irrelevant documents would materially impair Mr. Sussmann’s ability to prepare for his trial.

He also revealed that some of those privilege claims went back to August — that is, the weeks after Durham should have closed up shop.

Email from Andrew DeFilippis, Dep’t of Just., to Patrick Stokes, Gibson, Dunn & Crutcher LLP, et al. (Aug. 9, 2021) (requesting a call to discuss privilege issues with a hope “to avoid filing motions with the Court”); Email from Andrew DeFilippis, Dep’t of Just., to Patrick Stokes, Gibson, Dunn & Crutcher LLP, et al. (Aug. 14, 2021) (stating that the Special Counsel “wanted to give all parties involved the opportunity to weigh in before we . . . pursue particular legal process, or seek relief from the Court”). And since January— before the deadline to produce unclassified discovery had passed—the Special Counsel suggested that such a filing was imminent, telling the DNC, for example, that he was “contemplating a public court filing in the near term.” Email from Andrew DeFilippis, Dep’t of Just., to Shawn Crowley, Kaplan Hecker & Fink LLP (Jan. 17, 2022). [my emphasis]

In a hearing on May 4, right before trial, Joffe’s lawyer revealed they had demanded Durham press a legal claim much earlier, in May 2021.

MR. TYRRELL: So if they wanted to challenge our assertion of privilege as to this limited universe of documents — again, which is separate from the other larger piece with regard to HFA — they should have done so months ago. I don’t know why they waited until now, Your Honor, but I want to be clear. I want to say without hesitation that it’s not because there was ever any discussion with us about resolving this issue without court intervention.

THE COURT: That was my question. Were you adamant a year ago?

MR. TYRRELL: Pardon me?

THE COURT: Were you adamant a year ago that —

MR. TYRRELL: Yes. We’ve been throughout. We were not willing to entertain resolution of this without court intervention.

THE COURT: Very well.

Ultimately, Cooper did bow to Durham’s demand, but prohibited them from using those documents at trial.

That didn’t prevent DeFilippis from attempting to use the privileged documents to perjury trap his one Fusion witness, the kind of perjury trap that might have provided a way to continue the madness indefinitely.

There must have been nothing interesting there: most of the Fusion documents were utterly irrelevant to the Sussmann charges, but could implicate the Danchenko ones, but Durham didn’t use them there, nor did he explain their content in his final report.

Scripting witnesses

I’ll end where I begin: How Durham managed to coach witnesses testimony by threatening them with charges.

In addition to Auten, Durham did this, over and over again, with his star Sussmann witness Jim Baker.

Perhaps most interestingly, he did it in the weeks before trial with witnesses who, documentary evidence showed, had been informed or would have assumed that Michael Sussmann was representing the DNC, the key thing Durham claimed Sussmann could have credibly lied to hide.

The first time FBI Agent Ryan Gaynor testified to John Durham in October 2020, for example, he told prosecutors that the DNC was the source of the allegation.

Q. Okay. So in your first meeting with the government, you — this is October of 2020, correct?

A. Yes.

Q. You told them multiple times that you believed that the Democratic National Committee was the source of the allegations of connections between Alfa-Bank and Russia, correct?

A. Correct, which was wrong.

Q. Okay. But you said that you thought the Democratic party itself was who provided the information, correct?

A. I did say that in the meeting.

That’s even what he wrote in a briefing document he kept in Fall 2016.

At the end of that October 2020 interview, prosecutors threatened Gaynor with prosecution.

In trial prep testimony, however, starting on May 13, 2022, he came to claim to believe that Sussmann was representing himself, because otherwise his client would have been material — precisely the materiality claim Durham needed to make the charges stick.

More striking was how Durham’s star cyber witness (one of the guys who botched the investigation in September 2016 without examining the data closely) explained why the text he received from his boss, Nate Batty, referring to the white paper as a “DNC report” on September 21, 2016, didn’t amount to notice that Sussmann brought the report on behalf of the DNC.

At trial, Michael Sussmann lawyer Sean Berkowitz asked Hellman how it could be that he would see a reference to a DNC report and not take from that it was a DNC report. Hellman described “the only explanation that … was discussed” — which is that it was a typo.

Q. What’s your explanation for it?

A. I have no recollection of seeing that link message. And there is — have absolutely no belief that either me or Agent Batty knew where that data was coming from, let alone that it was coming from DNC. The only explanation that popped or was discussed was that it could have been a typo and somebody was trying to refer to DNS instead of DNC.

Q. So you think it was a typo?

A. I don’t know.

Q. When you said the only one suggesting it — isn’t it true that it was Mr. DeFilippis that suggested to you that it might have been a typo recently?

A. That’s correct.

Q. Okay. You didn’t think that at the time. Right?

A. I did not. I had never seen it or had any memory of seeing it ever before it was put in front of me.

With some prodding, Hellman admitted that when he referred to “discussing explanations,” he meant doing so with Andrew DeFilippis. This exchange was, quite literally, Berkowitz eliciting Hellman to describe that DeFilippis told him what to think about evidence that should have sunk his case years earlier.

As I said, DeFilippis cheated. With lesser attorneys or more exhausted witnesses, it might have worked.

And they’re about to try again.

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By “Vilifying” SVR Victim Julianne Smith, Kash Patel Establishes Precedent to Share the Epstein Files

August 4, 2025/10 Comments/in emptywheel /by emptywheel

Last week, Kash Patel established precedent for releasing damaging — potentially even fabricated — accusations against prominent private citizens, a precedent that demolishes the excuse DOJ and FBI made less than a month ago to bury the Epstein files.

There was also no credible evidence found that Epstein blackmailed prominent individuals as part of his actions. We did not uncover evidence that could predicate an investigation against uncharged third parties.

[snip]

Perpetuating unfounded theories about Epstein serves neither of those ends.

To that end, while we have labored to provide the public with maximum information regarding Epstein and ensured examination of any evidence in the government’s possession, it is the determination of the Department of Justice and the Federal Bureau of Investigation that no further disclosure would be appropriate or warranted.

After all, in releasing the declassified Durham annex — a document, like the Epstein files, in the custody of FBI and DOJ — Kash released not just information on several prominent uncharged third parties, but unsealed and disseminated “unfounded theories” about them, most notably Julianne Smith, the woman John Durham suspected of entering into a conspiracy to frame Donald Trump.

In 2016, when Russian spies tried to frame her, Smith was a private citizen.

At the time, Smith worked at the Center for New American Security (“CNAS”) and was serving as a Clinton campaign foreign policy advisor. OSC Report of Interview of Julianne Smith on July 21, 2021 at 1. She advised investigators that she never received notification that her account was hacked, but was aware that CNAS was “regularly challenged by China and Russia.”

At the time of her Durham interview in July 2021, she was serving as an advisor to Tony Blinken, awaiting confirmation to serve as NATO Ambassador. But she is, as far as I understand, once again a private citizen.

In the unclassified Durham Report, Smith is referred to as “Foreign Policy Advisor-1.” I actually made some efforts to discover who this was when the report came out, asking senior Clinton people, to no avail (and the frothers got the identity wrong); even they had no idea.

But in the appendix — an appendix that indicates, without saying explicitly, that Russian hackers stole the same email soliciting criticism of Trump’s attacks on NATO that Smith turned over to Durham herself — Durham chose to name her, thereby deviating from the approach adopted by Michael Horowitz with his Hillary Report classified annex.

We are writing to enlist your support for the attached public statement. Both of us are Hillary Clinton supporters and advisors but hope that this statement could be signed by a bipartisan group[.] Donald Trump’s repeated denigration of the NATO Alliance, his refusal to support our Article 5 obligations to our European allies and his kid glove treatment of Russia and Vladimir Putin are among the most reckless statements made by a Presidential candidate in memory. 438

The same email sourced to an apparent subpoena return obscuring her name in the unclassified report, XXXX-0014561, is described as Classified Appendix Document-9 in the appendix.

This real document, doing nothing more than criticizing Trump for stances he did not hide, a criticism Hillary had been making for months, is one of the nuggets on which John Durham built a false conspiracy theory, which in turn built off a plan by Russian spies to gin up a conspiracy theory about,

I don’t know, some dark forces, like the FBI for instance, or better yet, Clinton sympathizers in IC, Pentagon, Deep State (or somewhere else), about American websites deploying a campaign to demonize the actions of Russia’s GRU.

As I have repeatedly shown, Durham took affirmative proof that Smith was not conspiring with his imagined chief conspirator Michael Sussmann and turned it into “oil to put into his fire.” Durham included texts between Smith and another Hillary advisor, reflecting her attempts to ask senior Obama officials (apparently including Lisa Monaco) yet failing to get answers about whether anyone was even investigating the Russian hack. Durham insanely judged that a hack victim, trying to find out of the FBI was investigating the hack, was part of a plot to frame Donald Trump.

Advisor-1 ‘s text message exchange with Foreign Policy Advisor-2 supports the notion that at least some officials within the campaign were seeking information about the FBI’s response to the DNC hack, which would be consistent with, and a means of furthering, the purported plan. Moreover, the campaign’s funding of the Steele Reports and Alfa Bank allegations as described in greater detail in Sections IV.D. l.b.ii and IV.E. l.b provide some additional support for the credibility to the information set forth in the Clinton Plan intelligence.

By the time Durham wrote this tripe, Michael Sussmann had forced Durham to obtain records about how persistently he had spoken to the FBI about the hacks, including records showing that FBI failed to consult with him before making its first public statement about the DNC hack.

It is wildly inconsistent to point to Smith’s unsuccessful attempts to get top national security officials to assuage her concerns about an investigation as proof of a conspiracy in which Michael Sussmann, who would have been the ring-leader, had been in weekly contact with the FBI about the investigation since they first alerted the FBI.

It’s not just that John Durham never charged Smith in his conspiracy conspiracy theory. It’s that his case was grotesquely stupid.

And, he himself concluded that his conspiracy conspiracy theory was based on composite emails — pretending to be raw intelligence — that the SVR fabricated into an attempt to frame Smith. As I show here, even the premise of his investigation involved treating SVR claims as Smith’s own.

Under DOJ guidelines — under the pretext that DOJ and FBI adopted less than a month ago — Smith is the kind of private citizen whose name you continue to mask, as Durham did in the public release two years ago. Certainly, there’s far less public interest in knowing the ID of someone the SVR framed 9 years ago than knowing why the President is making overt efforts to silence the sexual predator who, by his own confession, “stole” underage girls from his spa, recruiting at least one into sex slavery.

But Kash chose not to do that.

Kash chose to make the name of someone who had been framed — with his help — by Russian spies public.

Which pretty much demolishes his excuse for hiding details about what Trump knew about Ghislaine Maxwell stealing his girls.

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John Ratcliffe and Kash Patel — and Durham Himself — Committed the Crime John Durham Was Hunting

August 3, 2025/11 Comments/in emptywheel /by emptywheel

By July 2021, John Durham had virtually all the evidence he needed to know that both premises of his investigation — that Hillary Clinton had a plan to frame Donald Trump, and FBI learned about that plan but ignored it when they relied on the Steele dossier and accepted the Alfa Bank allegations — were false. Yet he continued going for two more years anyway, pursuing prosecutions of Michael Sussmann and Igor Danchenko, both of which resulted in acquittals.

You might be forgiven, more than two years after John Durham closed up shop, if you’ve forgotten why he even spent four years chasing what is now clear was Russian disinformation, effectively investigating people because they had been hacked by Russian spies who framed them as part of a plan to, “put more oil into the fire.”

There are several explanations “why” Durham conducted this investigation, including:

Bill Barr determined, before he even saw the evidence acquired by Mueller (if he ever did), there should be an investigation to avenge the Russian investigation
Durham got snookered into chasing Russian conspiracy theories designed to stoke polarization, doing great damage in the process
In 2020, John Ratcliffe reported a referral from the CIA to the FBI

Durham’s report misleadingly suggests it was the last one: the declassification of the SVR report that John Ratcliffe did — first a report about the SVR allegation, then two exhibits about it — in September and October 2020. By that point, Durham had done at least four interviews focused primarily on the SVR allegation: a September 17, 2019 interview with the FBI analyst who knew that collection best, a February 27, 2020 interview with some kind of spook, two July 8, 2020 interviews with some IC officers, and an interview with another IC officer the day Ratcliffe released the exhibits. (Given that Ratcliffe boasted about how many times he met with Durham, that October 7 interview could well be Ratcliffe himself.)

The Office also considered as part of its investigation the government’s handling of certain intelligence that it received during the summer of 2016. That intelligence concerned the purported “approval by Hillary Clinton on July 26, 2016 of a proposal from one of her foreign policy advisors to vilify Donald Trump by stirring up a scandal claiming interference by the Russian security services.” 391 We refer to that intelligence hereafter as the “Clinton Plan intelligence.” DNI John Ratcliffe declassified the following information about the Clinton Plan intelligence in September 2020 and conveyed it to the Senate Judiciary Committee:

In late July 2016, U.S. intelligence agencies obtained insight into Russian intelligence analysis alleging that U.S Presidential candidate Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin and the Russians’ hacking of the Democratic National Committee. The IC does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.

According to his handwritten notes, CIA Director Brennan subsequently briefed President Obama and other senior national security officials on the intelligence, including the “alleged approval by Hillary Clinton on July 26, 2016 of a proposal from one of her foreign policy advisors to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.”

On 07 September 2016, U.S. intelligence officials forwarded an investigative referral to FBI Director James Comey and Deputy Assistant Director of Counterintelligence Peter Strzok regarding “U.S. Presidential candidate Hillary Clinton’s approval of a plan concerning U.S. Presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private mail server.” 392

The Clinton Plan intelligence was relevant to the Office’s investigation for two reasons.

First, the Clinton Plan intelligence itself and on its face arguably suggested that private actors affiliated with the Clinton campaign were seeking in 2016 to promote a false or exaggerated narrative to the public and to U.S. government agencies about Trump’s possible ties to Russia. Given the significant quantity of materials the FBI and other government agencies did in fact receive during the 2016 presidential election season and afterwards that originated with and/or were funded by the Clinton campaign or affiliated persons (i.e., the Steele Dossier reports, the Alfa Bank allegations, and the Yotaphone allegations), the Clinton Plan intelligence prompted the Office to consider (i) whether there was in fact a plan by the Clinton campaign to tie Trump to Russia in order to “stir[] up a scandal” in advance of the 2016 presidential election, and (ii) if such a plan existed, whether an aspect or component of that plan was to intentionally provide knowingly false and/or misleading information to the FBI or other agencies in furtherance of such a plan. 393

Second, the Clinton Plan intelligence was also highly relevant to the Office’s review and investigation because it was part of the mosaic of information that became known to certain U.S. officials at or before the time they made critical decisions in the Crossfire Hurricane case and in related law enforcement and intelligence efforts. Because these officials relied, at least in part, on materials provided or funded by the Clinton campaign and/or the DNC when seeking FISA warrants against a U.S. citizen (i.e., the Steele Dossier reports) and taking other investigative steps, the Clinton Plan intelligence had potential bearing on the reliability and credibility of those materials. Put another way, this intelligence-taken at face value-was arguably highly relevant and exculpatory because it could be read in fuller context, and in combination with other facts, to suggest that materials such as the Steele Dossier reports and the Alfa Bank allegations (discussed below and in greater detail in Section IV.E. l) were part of a political effort to smear a political opponent and to use the resources of the federal government’s law enforcement and intelligence agencies in support of a political objective. The Office therefore examined whether, and precisely when, U.S. law enforcement and intelligence officials became aware of the Clinton Plan intelligence; whether they vetted and analyzed the intelligence to understand its potential significance; and whether those officials, in turn, incorporated the intelligence into their decision-making regarding the investigation of individuals who were part of the Trump campaign and had possible ties to Russian election interference efforts.

I’ll come back to the significance of precisely what Ratcliffe and Kash declassified.

Durham depends on a different conspiracy theory in each report

For now, consider how each of his two volumes (unclassified, classified) confess that one of these two prongs — Clinton had a plan, and the FBI ignored that she did — was false, but then obscures that the other was, too.

This post, which explains Durham’s Clinton conspiracy conspiracy theory, holds up very well (if I do say so myself) even after the annex was declassified. It shows that Durham:

Falsely claimed the Russian intelligence report alleging Hillary had a plan to smear Trump about his ties to Russia did — or would even have to — rely on false information
Misrepresented the nature of the report about Hillary, thereby misrepresenting the dissemination of SVR intelligence within the Intelligence Community
Only found any confirmation for his Clinton conspiracy conspiracy theory from witnesses whose memories had been radically altered by the threat of criminal prosecution; everyone else disclaimed every shred of Durham’s Clinton conspiracy conspiracy theory

There are just a few things structurally that seeing the classified annex adds. Here’s how the two sections map.

Both tell the story of the SVR Report (just the classified annex describes the underlying documents or concedes they were fabricated). Both describe how none of Hillary’s people knew anything about Durham’s Clinton conspiracy conspiracy theory. Both point to true things — reliance on an accurate Franklin Foer story that Durham miscites, interest in whether the FBI was investigating, and an effort to condemn Trump for his attacks on NATO — to bolster Durham’s case that his Clinton conspiracy conspiracy theory is true, though in the classified annex, Durham puts these details in his “The authenticity of the Benardo emails” section.

Both include a section that points to some other part of his (or the right wing’s) obsessions to bolster the Clinton conspiracy conspiracy theory. The unclassified report has a section that misrepresents both Fusion’s dissemination of the Steele dossier and Clinton’s media push of the Alfa Bank allegations (in the process, conflicting with other parts of his report and the results of his investigations) to buck up his theory. The classified annex has a section (after the conclusion that the emails were “composites” and a section describing other times the US Intelligence Community treated these SVR documents as authentic) pointing to Loretta Lynch’s “odd” reaction to a briefing on the two SVR reports claiming she was intervening in the Clinton email investigation. It’s the inclusion of that briefing (Durham conveniently ignores both that the FBI found these documents to be “objectively false” and the reference to Jim Comey throwing the election for Republicans) that allows Durham to decide that, while the emails on which the report was based were probably “composites,” the Clinton plan might be true (this is the conclusion Sean Davis and with him FBI Director Kash Patel cling to) and so his investigation into the FBI’s purported receipt of a report about it legitimate.

The other remarkable difference between the unclassified and classified report is in the way Durham describes his certainty that what he calls a referral ever got to the FBI — or more specifically, Peter Strzok — in the first place. His unclassified report includes an entire paragraph describing that no one on the Crossfire Hurricane team remembered seeing it.

The Office showed portions of the Clinton Plan intelligence to a number of individuals who were actively involved in the Crossfire Hurricane investigation. Most advised they had never seen the intelligence before, and some expressed surprise and dismay upon learning of it. For example, the original Supervisory Special Agent on the Crossfire Hurricane investigation, Supervisory Special Agent-1, reviewed the intelligence during one of his interviews with the Office. 428 After reading it, Supervisory Special Agent-1 became visibly upset and emotional, left the interview room with his counsel, and subsequently returned to state emphatically that he had never been apprised ofthe Clinton Plan intelligence and had never seen the aforementioned Referral Memo. 429 Supervisory Special Agent-1 expressed a sense of betrayal that no one had informed him ofthe intelligence. When the Office cautioned Supervisory Special Agent-1 that we had not verified or corroborated the accuracy of the intelligence and its assertions regarding the Clinton campaign, Supervisory Special Agent-1 responded firmly that regardless of whether its contents were true, he should have been informed of it. 430

During Durham’s testimony to Congress, Strzok revealed that 1) contrary to Durham’s insinuations, he had spoken with with Durham’s investigators and 2) the copy of the referral that Durham’s team showed him was not an FBI copy, suggesting that Durham also had no proof the document ever made it to the FBI.

So in the unclassified report, Durham confesses his entire premise — that the FBI received this report and didn’t respond as he thinks they should have — may be utter bullshit, because they never received it.

Yet in his classified report, he states as fact, three different times, that it was sent to the FBI. He says this twice in the section purporting to validate the import of this report because the Intelligence Community responded to it, section 4 above.

In addition, as described in the unclassified report, on September 7, 2016, the CIA sent the FBI an “investigative referral” memorandum that referred to, among other information, the purported Clinton campaign plan.

[snip]

The DNI also declassified a portion of former CIA Director Brennan’s handwritten notes that describe the August 3, 2016 meeting with President Obama and the CIA Referral Memorandum sent to Director Comey and Deputy Assistant Director of Counterintelligence Peter Strzok. [my emphasis]

And then in the conclusion — the one Davis is impressed with — finding that even though the email on which this conspiracy theory was based is a composite, nevertheless it was important because the CIA sent a referral memo that he falsely suggests actually arrived at its destination.

Moreover, in early September 2016, the CIA prepared a referral memorandum on the information regarding the purported “plan” that went to the FBI [my emphasis]

So looking at these two together, the classified annex concludes that the emails behind the report that launched this whole project are “composites,” but because the CIA sent the FBI a referral memo, argues it was a legitimate exercise to review how the FBI responded to that referral memo. Then the unclassified report concedes it has no proof the CIA referral ever made it to the Crossfire Hurricane team, but the investigation was legitimate because Clinton may have shared knowingly false allegations about Trump with the FBI.

John Ratcliffe committed the crime John Durham was hunting

Now consider how those Ratcliffe declassifications cabined the investigation.

He describes that in interviews with Clinton and FBI people (to the extent that he’s not covering up FBI interviews that don’t help him), he used the declassified files with people who lacked clearance (including, with Jennifer Palmieri, the referral document rather than the report itself) and used a redacted version of the emails with people who had clearance, as well as Leonard Benardo. So his question about “Clinton plan” all focused on how fevered right wingers defined it.

I’ve already talked about the blind spots built into John Brennan’s notes. These notes span the fifth and sixth pages of Brennan’s notes, meaning a whole lot of the briefing was more important. They’re described as offering insight into “Russian activities,” not Hillary’s (the CIA couldn’t investigate Hillary’s in any case). The first redacted paragraph likely describes the SVR targets in question.

But there’s a bullet before the description of the purported Hillary plan, and who knows how much after it.

Now check out where the word, “vilify” appears in the known SVR documents. The actual draft report — the purported subject of this investigation — used the word, “smear.” The two emails dated July 25 using a Russian idiom, along with the email between spooks discussing starting a conspiracy theory, use the word, “demonize.” The purported July 27 email from Benardo doesn’t use any such word.

The word “vilify” appears in this email between spooks — the one that follows the one in which they discuss a plan to start a conspiracy theory about the Deep State.

Even in the classified appendix, Durham provides very little of the email, and half of what is there is redacted.

Now look at the referral memo.

It refers to “an exchange,” not a draft memo, which is what the memo in question is. It’s hard to imagine, at this point, what could be behind that redaction about Guccifer. And while there’s a mention in the report itself to Guccifer, that doesn’t pertain to Hillary. It’s a claim about what the FBI has discovered:

Clinton’s supporters in the FBI lack conclusive irrefutable evidence of the Russian Federation’s involvement in the scandal, tied to the theft of the DNC’s correspondence. In the meantime, during the launched investigation, there has been a multitude of circumstantial evidence that the alias of Guccifer 2.0 (the name of the hacker who accepted responsibility for the incident) was, in fact, used to cover up a special unit of the GRU of the Russian Federation Defense Ministry’s General Staff.

The email between the two spooks — which could fairly be called “an exchange” — ties the attribution to Guccifer directly to the plan to start a conspiracy theory about Hillary.

Effectively, this exchange says, “fuck, they’re onto Guccifer, let’s start a conspiracy theory about Hillary! dark forces!! Deep State!!!” And then the follow-up email describes the conspiracy theory in terms of “vilifying” Putin and Trump.

Both these reports — the Brennan notes and the CIA referral to FBI — appear to refer not to the draft report about Hillary’s claimed plan, but instead to communications between the Russian spooks reflecting a plan to invent a conspiracy theory about Hillary to muddle the Guccifer attribution (which is precisely what Roger Stone immediately did).

If that’s right, it means it was never a Clinton plan, it was an SVR plan. That makes sense; after all, John Brennan wouldn’t be permitted to investigate Hillary Clinton’s plans to do oppo research, but he would be permitted to investigate SVR’s plans to frame Hillary. And that’s what he told Durham: he was focused not on Hillary’s plan but Russia’s.

When interviewed, Brennan generally recalled reviewing the materials but stated he did not recall focusing specifically on its assertions regarding the Clinton campaign’s purported plan. 400 Brennan recalled instead focusing on Russia’s role in hacking the DNC. 401

And having apparently mischaracterized what actually elicited CIA attention, Durham then spent paragraphs and paragraphs talking about how if the FBI had simply factored in a conspiracy theory invented by SVR to muddle the GRU attribution, then they might not have relied on the Steele dossier (itself being injected with Russian disinformation) or accepted the Alfa Bank allegations.

Indeed, Durham actually considered whether Peter Strzok committed a crime by ignoring his misrepresentation of the referral that he had no evidence Strzok ever received.

Whether these failures by U.S. officials amounted to criminal acts, however, is a different question. In order for the above-described facts to give rise to criminal liability under federal civil rights statutes, the Office would need to, for example, identify one or more persons who (i) knew the Clinton campaign intended to falsely accuse its opponent with specific information or allegations, (ii) intentionally disregarded a particular civil right of a particular person (such as the right to be free of unreasonable searches or seizures), and (iii) then intentionally aided that effort by taking investigative steps based on those allegations while knowing that they were false.

[snip]

Although the evidence we collected revealed a troubling disregard for the Clinton Plan intelligence and potential confirmation bias in favor of continued investigative scrutiny of Trump and his associates, it did not yield evidence sufficient to prove beyond a reasonable doubt that any FBI or CIA officials494 intentionally furthered a Clinton campaign plan to frame or falsely accuse Trump of improper ties to Russia.

But Durham never factors into his own investigation those other two emails between spooks, both of which likely precede the report he claimed he was investigating. He never mentions them at all. Had he factored those in, all of this would have been shut down in 2021.

And after claiming that Clinton had a plan to falsely accuse her opponent rather than that SVR had a plan to falsely accuse Hillary, Durham used all this to get warrants targeting Michael Sussmann and Igor Danchenko. He, “intentionally disregarded a particular civil right of [Sussmann and Danchenko] (such as the right to be free of unreasonable searches or seizures), and (iii) then intentionally aided that effort by taking investigative steps based on those allegations while knowing that they were false.”

Once you see those two other emails between the Russian spooks — the one linking Guccifer directly to the plan to talk about the Deep State and the one using the word “vilify,” both of which Durham disregarded — then you have evidence that Kash, Ratcliffe, and Durham himself knew the SVR intended to falsely accuse Hillary, then took investigative steps based on those allegations that were clearly fabricated.

They took four whole years of investigative steps.

No wonder Durham allegedly tried to bury all this in burn bags.

Update: Remember that Kash, at a time he was a private citizen, was making claims making insinuations about Hillary making a plan in July 2016.

Update: And Ratcliffe was similarly making false claims on this topic while a private citizen.

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Gravity and Trump’s Conspiracy Cabinet

January 5, 2025/31 Comments/in 2016 Presidential Election, 2020 Presidential Election, 2024 Presidential Election, Hunter Biden, Mueller Probe /by emptywheel

This paragraph, describing the role that aspiring FBI Director Kash Patel played in Trump’s video collaboration with a bunch of mostly-violent Jan6ers, appears about two thirds of the way through a very good NYT review of how Trump has rewritten the history of January 6.

Mr. Trump recorded his contribution at his Mar-a-Lago residence in Florida, while the choir was recorded with a phone in the Washington jail. The song — a fund-raising effort that the Trump loyalist Kash Patel, now the president-elect’s nominee to head the F.B.I., helped produce — concludes with a defiant echo of the “U.S.A.!” chants that resounded during the Jan. 6 attack.

Kash Patel has been central to the success of Trump’s repackaging of his own crimes as grievance from the start.

And I’ve been trying to figure out how that’ll work as I contemplate what I think of as Trump’s Conspiracy Cabinet.

I’ve been thinking of his nominations as a combination of a highly competent Christian nationalist core (led by Stephen Miller and Russ Vought), largely filled out with people who’ll be in the business of graft and other kinds of corruption — whether for their own benefit or Trump’s. But the most unpredictable element is how Trump plans to fill government with embodiments of the conspiracies that have become central to his movement.

That’s most evident in virtually of Trump’s health-related appointments, starting with Bobby Kennedy (who might yet lose his confirmation battle). I don’t, for a second, believe the claim from someone adjacent to Roger Stone that Trump picked RFK and Tulsi Gabbard as a way to tap into a realignment of Democrats. Rather, Trump had to appoint them to keep the likes of Matthew Livelsberger , who invoked RFK in his manifesto, engaged, no matter the cost. And so after having presided over a heroic rush to develop a COVID vaccine in his first term, Trump will hand over America’s scientific crown jewels to people who don’t believe in science.

What will happen when these conspiracists confront the immutable laws of science? What will happen when gravity hits?

And how many children will die as a result?

The damage that Tulsi will be able to do (again, her confirmation is not assured) at National Intelligence is more measurable. US intelligence has been politicized for years. Forever. Such politicization as often as not cause self-perpetuating scandal cycles. And if not, Bad Things will likely result that will harm the US and lead to avoidable catastrophes that Trump should own.

It’s the damage posed by Kash’s likely installation at FBI — he has a better shot at confirmation than either RFK or Tulsi — that I can’t fully grok.

Back in the halcyon days of the Durham investigation, I came to believe that gravity would defeat these grievance myths, would defeat the kinds of conspiracies Kash sows, too. Even with Durham, Kash helped facilitate the false claims Durham spun out of theories of conspiracy hung on two false statements indictments. A key prong of the Sussmann prosecution — into what he said to the CIA in January 2017 — arose out of a question Kash somehow knew to ask on December 18, 2017. Then, after Durham deliberately misrepresented legitimate intelligence that Georgia Tech discovered dating to the Obama Administration to insinuate that Trump had been spied on, Kash made a number of unhinged claims to expand on Durham’s already false claim.

But the oddest statement came from “Former Chief Investigator for Russia Gate [sic]” and current key witness to an attempted coup, Kash Patel, sent out by the fake Think Tank that hosts some of the former Trumpsters most instrumental in covering up for Trump corruption.

Taken literally (which one should not do because it is riddled with false claims), the statement is a confession by Kash that he knew of what others are calling “spying” on Trump and did nothing to protect the President.

Let’s start, though, by cataloguing the false claims made by a man who played a key role in US national security for the entirety of the Trump Administration.

First, he claims that the Hillary Campaign, “ordered … lawyers at Perkins Coie to orchestrate a criminal enterprise to fabricate a connection between President Trump and Russia.” Thus far, Durham has made no claims about any orders coming from the Hillary Campaign (and the claim that there were such orders conflicts with testimony that Kash himself elicited as a Congressional staffer). The filing in question even suggests Perkins Coie may be upset about what Sussmann is alleged to have done.

Latham – through its prior representation of Law Firm-1 – likely possesses confidential knowledge about Law Firm-1’s role in, and views concerning, the defendant’s past activities.

In fact, in one of the first of a series of embarrassing confessions in this prosecution, Durham had to admit that Sussmann wasn’t coordinating directly with the Campaign, as alleged in the indictment.

Kash then claims that “Durham states that Sussmann and Marc Elias (Perkins Coie) … hired .. Rodney Joffe … to establish an ‘inference and narrative’ tying President Trump to Russia.” That’s false. The indictment says the opposite: Joffe was paying Perkins Coie, not the other way around. Indeed, Durham emphasized that Joffe’s company was paying Perkins Coie a lot of money. And in fact, Durham shows that the information-sharing also went the other way. Joffe put it together and brought it to Perkins Coie. Joffe paid Perkins Coie and Joffe brought this information to them.

Kash then claims that “Durham writes that he has evidence showing Joffe and his company were able to infiltrate White House servers.” Kash accuses the Hillary Campaign of “mastermind[ing] the most intricate and coordinated conspiracy against Trump when he was both a candidate and later President.” This betrays either real deceit, or ignorance about the most basic building blocks of the Internet, because nowhere does Durham claim that Joffe “infiltrated” any servers. Durham, who himself made some embarrassing technical errors in his filing, emphasizes that this is about DNS traffic. And while he does reveal that Joffe “maintain[ed] servers for the EOP,” that’s not infiltrating. These claims amount to a former AUSA (albeit one famously berated by a judge for his “ineptitude” and “spying”) accusing a conspiracy where none has been charged, at least not yet. Plus, if Joffe did what Kash claims starting in July 2016, as Kash claims, then Barack Obama would be the one with a complaint, not Trump.

Finally, Kash outright claims as fact that Joffe “exploited proprietary data, to hack Trump Tower and the Eisenhower Executive Office Building.” This claim is not substantiated by anything Durham has said and smacks of the same kind of conspiracy theorizing Louise Mensch once engaged in. Only, in this case, Kash is accusing someone who has not been charged with any crime — indeed, a five year statute of limitation on this stuff would have expired this week — of committing a crime. Again: a former AUSA, however inept, should know the legal risk of doing that.

Curiously, Kash specifies that the White House addresses involved were in the Eisenhower Executive Office Building. That could well be true, but Durham only claims they were associated with EOP, and as someone who worked there, Kash should know that one is a physical structure and the other is a bureaucratic designation. But to the extent Kash (who has flubbed basic Internet details already) believes this amounted to hacking the EOP, it is based off non-public data.

So, like I said, the piece is riddled with false claims, but with two claims that go beyond anything Durham has said.

This one-two punch — first Durham misrepresenting evidentiary claims and then Kash spinning Durham’s misrepresentations free of all mooring — resulted in Trump making death threats targeting Sussmann and an entire campaign targeting Rodney Joffe.

But in the end, even though Durham’s lawyers repeatedly defied Judge Christopher Cooper’s orders, they ultimately mostly failed to present the theory of conspiracy they had about Sussmann’s alleged false statement. Sussmann, after paying superb lawyers a bunch of money, having his career disrupted, and facing death threats ginned up by the former President, was acquitted.

The process worked, but not before a great many people’s lives were upended, irrevocably.

So even though only NYT joined me, in exposing the degree to which a theory of conspiracy, and not any real evidence, lay behind Durham’s insinuations of guilt, even though the legacy media chased Durham’s theory of conspiracy hook line and sinker, I at least believed that the system would work.

The Hunter Biden prosecution has disabused me of that faith. Between the fact that Hunter really did evade taxes — the presence of a crime that could substitute for all the unsubstantiated claims about him — and the way a multi-year revenge porn campaign solidified the legacy media belief he was too icky for due process, prosecutors continue to make outlandish claims with little pushback, much less curiosity about why a witness to a crime is overseeing the investigation into it.

As FBI Director Kash will have the ability to do what he did in advance of the Sussmann hearing, find some nugget, tangential to any topic at hand, on which to hand a larger conspiracy theory.

Amid all the focus on Trump naming his defense team to run DOJ, there has been little focus on the fact that Emil Bove, whom he named to PADAG (even though the position doesn’t require confirmation and once confirmed as DAG, Todd Blanche could presumably put anyone he wants in the position), presided over a serious discovery violation scandal at SDNY, which forced him out of DOJ. If judges continue to hold DOJ to already weak discovery requirements, due process might survive. But if DOJ institutionally permits prosecutors to ignore their ethical guidelines, it will become far, far easier to frame defendants.

And the press has simply stopped reporting on due process, choosing instead to chase whatever dick pics propagandists unpack in front of them.

Kash Patel earned his nomination to be FBI Director by being the self-described wizard of Trump’s grievance myth. He has done such a tremendous job spinning that myth that even some good faith Republican Senators believe that myth as true.

And while I’m sure that gravity will eventually catch up to RFK Jr, as it did in Samoa, while I have every expectation to continue doing what I do, if only to witness further assaults on due process, I’m far less sanguine about gravity’s effect on a Kash-run Bureau.

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Ball of Threads: Durham Descends

November 5, 2024/4 Comments/in 2016 Presidential Election, 2020 Presidential Election /by emptywheel

LOLGOP finished this just in time for you to spend your day watching it while you wait. We describe how Bill Barr and John Durham attempted to criminalize being the victim of a hack-and-leak attack.

Here’s the Patreon for the series.

You can also subscribe on:
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The Seth DuCharme Confession in the Charles McGonigal Sentencing Memo

January 12, 2024/11 Comments/in emptywheel, Mueller Probe /by emptywheel

In his sentencing memo for Charles McGonigal’s DC case, former Bill Barr flunky Seth DuCharme twice misstated the nature of the false statement for which Kevin Clinesmith was sentenced.

In a passage comparing other government officials who had omitted information from government filings, as McGonigal pled he had, DuCharme asserted that Clinesmith was prosecuted for making “false statements,” plural, “in application for” FISA warrant.

United States v. Clinesmith, No. 1:20-cr-165 (D.D.C. 2020) (imposing probation against FBI attorney for false statements in application for a Foreign Intelligence Surveillance Act (“FISA”) warrant); [my emphasis]

Even before that, in arguing that Judge Colleen Kollar-Kotelly should not apply a sentencing enhancement, he turned to Clinesmith. This time, he accused Clinesmith of causing false information to be submitted to FISC.

Mr. McGonigal disagrees with the application of the cross reference in Section 2B1.1(c)(3), which would increase his base offense level to 14, as inconsistent with case precedent. In United States v. Clinesmith, No. 1:20-cr-165 (D.D.C. 2020), the government did not seek and the sentencing court did not independently apply the cross reference to the obstruction Guideline at the sentencing of an FBI attorney who caused false information to be submitted to the U.S. Foreign Intelligence Surveillance Court (“FISC”) in an application for a Foreign Intelligence Surveillance Act (“FISA”) warrant sought in connection with an active FBI investigation. The government’s position that false statements to the FISC during an active investigation does not warrant application of the cross reference while Mr. McGonigal’s conduct does is perplexing. While Mr. McGonigal concedes that this Court in United States v. Hawkins, 185 F. Supp. 3d 114 (D.D.C. 2016) held that it may consider conduct in the statement of the offense, and the court in United States v. Saffarinia, 424 F. Supp. 3d 46 (D.D.C. 2020) held that at the motion to dismiss phase Section 1519 is broad enough to cover false statements on OGE-278 forms, it is difficult to reconcile these cases with the Clinesmith court’s more recent analysis. In Clinesmith, the District Court declined to apply the obstruction cross reference in determining the applicable Guidelines range, and we respectfully request that this Court similarly decline to apply the cross reference to the facts at issue here. [my emphasis]

Kevin Clinesmith altered an email and with it, misled a colleague, thereby preventing the FBI from fully informing the FISA Court on something material to the application. In that, he “caused” information not to be shared with the FISC. He did not make false statements in the application (and in any case, the original decision not to notify the court that Page had years earlier shared information with the CIA about Russian spies, which Clinesmith had no part of, had in significant part to do the the fact that Page had not been an approved contact of the CIA for several years before 2016, when he went out of his way to contact the Russians about his role in a counterintelligence investigation). Nor did Clinesmith cause affirmative false statements to be made.

His was a crime of omission, not commission, as DuCharme claimed. I emailed DuCharme about the basis for these claims but got no response.

More importantly, whether you agree with him or not, Judge James Boasberg explained why he sentenced Clinesmith to probation: because he didn’t think Clinesmith believed he was lying and the former FBI lawyer got no benefit from his false claim.

First, he obtained no real personal benefit from his actions and he had no active intent to harm.

Although the government has contested this, my view of the evidence is that Mr. Clinesmith likely believed that what he said about Dr. Page was true, namely that he was a subsource but not a source of the Other Government Agency. By altering the e-mail, he was saving himself some work and taking an inappropriate shortcut. But I do not believe that he was attempting to achieve an end he knew was wrong.

I’m on the record saying Clinesmith should have gotten some jail time, even in spite of the wildly unsubstantiated claims Durham’s team made about politicization. I think DuCharme is totally right to compare how lenient courts have been with government officials who fail to disclose things, including by invoking the Clinesmith sentence. That’s all sound lawyering.

But his sloppy treatment of Clinesmith — the appointment of John Durham to prosecute for which DuCharme played a central role — comes off as petulant and partisan. Indeed, Barr’s office took personal interest in this prosecution all the way through the time DuCharme swapped back to EDNY, as revealed by a text exchange Barr had with his Chief of Staff, probably complaining that Boasberg remained on this case, after the plea deal.

There are few factual similarities to the two cases, and by focusing so much on him, DuCharme seems to be saying, “if Kevin Clinesmith didn’t have to go to jail based on our conspiracy theories about him, my guy shouldn’t have to either.”

All the more so given another enhancement argument DuCharme made. He argues that a 3-level enhancement should not be applied because McGonigal trumped up a FARA investigation into the rival of the Albanian paying him to travel around Europe, the thing he failed to disclose.

Mr. McGonigal further disagrees with the application of Section 2J1.2(b)(2) resulting in a three-level enhancement for “substantial interference” with the administration of justice. According to the PSR, the enhancement is applied to Mr. McGonigal because he admitted to “speaking with a foreign official about a matter in which Person A had a financial interest, and opening a criminal investigation based on information provided to him by Person A.” PSR ¶ 57. While the enhancement is appropriately applied to the “premature or improper termination of a felony investigation,” we are aware of no authority supporting its application to the opening of a felony investigation, as is the case here. 7 As Special Agent in Charge (“SAC”) of Counterintelligence for the New York Field Office, it was Mr. McGonigal’s job to pass along information he received that could be indicative of criminal activity. Had Mr. McGonigal taken the alternative route and concealed or withheld the information he received from Person A concerning potential criminal activity in the United States, that would be troubling. Instead, he passed the tip and lead to the FBI, to be appropriately vetted by the Bureau and the U.S. Attorney’s Office. Accordingly, the application of Section 2J1.2(b)(2) is unwarranted.

7 U.S.S.G. § 2J1.2 (“Substantial interference with the administration of justice” means “a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based upon perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources.”); see e.g., United States v. Baker, 82 F.3d 273 (8th Cir 1996) (applying enhancement to police officer who improperly terminated a felony investigation). [my bold, italics original]

The technical issue — whether this enhancement can be used because someone initiated an improper investigation rather than improperly ending one — will make an interesting appeal if Kollar-Kotelly applies the enhancement and and sentences McGonigal to serve his sentence concurrent to the 50-month sentence Judge Jennifer Rearden gave McGonigal for trying to trump up sanctions against an Oleg Deripaska rival in SDNY, something DOJ is not requesting. But it’s likely that would be unsuccessful: As the government notes in its sentencing memo and even the footnote here makes clear, after the termination language DuCharme focuses on, the guideline continues, “or the unnecessary expenditure of substantial governmental or court resources.” And McGonigal’s opening an investigation against his business partner’s rival used counterintelligence resources that should have been spent on more serious threats.

FBI officials even questioned the propriety of opening up the criminal investigation at the time it was initiated, but cited the defendant’s directive. See Ex. 1 at 1.

[snip]

Here, initiating the investigation based on Person A’s information was particularly egregious given its lack of substantiation, which is why it was promptly closed following the defendant’s retirement.

DOJ provided records showing that one of McGonigal’s colleagues was genuinely troubled about the propriety of opening a FARA case against someone who had already registered under FARA regarding a country, Albania, that isn’t among the countries of priority for such things. By opening an investigation into a lobbyist for an Albanian political party (reportedly former Ted Cruz Chief of Staff Nicholas Muzin), McGonigal was drawing resources away from more pressing threats.

So my question is with all the talk of shortage of resources and most field offices having difficulty covering Band 3 and 4 threats, and FARA cases from banded threat countries rarely prosecuted by DOJ, why is NY requesting a SIM FAR investigation be opened on Albania for an improper FARA registration as a threat to national security?

I of course will fully support anything NY wants to do in their AOR, but once the paperwork to restrict the case gets reported up my chain of command, I would like to be able to explain to them why we are working an Albanian SIM/FARA case when every day I am in there fighting for resources on some national security matters pertaining to banded countries such as [redacted]. I am assuming since this directive is coming from SAC McGonigal there is more to this story?

Per those records, McGonigal appears to have caused a politically connected Republican to have nine of his bank accounts scrutinized before the investigation got closed. The Albanian section of Oversight Democrats’ report on Trump’s acceptance of emoluments provides more background on the political wranglings involved; Albanian Prime Minister Edi Rama and two aides spent almost $3,500 at Trump’s hotel on a trip when they met with McGonigal.

Notably, the investigation against this lobbyist, like Crossfire Hurricane, was opened as a Full investigation from the start.

And after the FBI discovered that McGonigal had opened up an investigation to help his business partner, the FBI has had to review all the other cases he was working on to make sure he hadn’t similarly used criminal investigations for self-interested purposes.

Moreover, given the defendant’s senior and sensitive role in the organization, the FBI has been forced to undertake substantial reviews of numerous other investigations to insure that none were compromised during the defendant’s tenure as an FBI special agent and supervisory special agent. The defendant worked on some of the most sensitive and significant matters handled by the FBI. PSR ¶¶ 98-101. His lack of credibility, as revealed by his conduct underlying his offense of conviction, could jeopardize them all. The resulting internal review has been a large undertaking, requiring an unnecessary expenditure of substantial governmental resources.

The misrepresentation of the Clinesmith plea might be reasonable coming from someone else. Like all criminal defendants, McGonigal deserves zealous advocacy.

But this argument came from Seth DuCharme.

It came from someone who opened a four year follow-on investigation in which the only crime ever identified was that Clinesmith alteration — and that crime was discovered by someone else, and could easily have been, and should have been, prosecuted by the very same prosecutors who did prosecute it, only instead reporting to the Trump appointed US Attorney in DC rather than Durham. And among the prosecutions pursued as part of that four year investigation that Seth DuCharme opened was a false statements case against Michael Sussmann based off logic directly contrary to what DuCharme argues here, that McGonigal would have failed to do his duty if he hadn’t opened the investigation into his business partner’s rival. That logic, applied to the Durham investigation, says it would have been remiss not to investigate the Alfa Bank allegations that Sussmann shared with Jim Baker — which is exactly what Sussmann said from the start.

Worse still, that argument DuCharme makes, that, “it was Mr. McGonigal’s job to pass along information he received that could be indicative of criminal activity,” is precisely the argument that Bill Barr made to explain a similar laundering of self-interested information that Seth DuCharme effected: the channeling of information from Rudy Giuliani to the Hunter Biden investigation.

The DOJ has the obligation to have an open door to anybody who wishes to provide us information that they think is relevant.

That is, the dishonest argument that Seth DuCharme is making, trying to dismiss the seriousness of Charles McGonigal’s use of FBI resources to conduct an investigation in which he had an undisclosed personal interest? It’s an argument that might also exonerate his own twin efforts to launch massive investigations into Donald Trump’s political rivals.

In fact, in McGonigal’s Deripaska-related sentencing hearing, DuCharme said something shocking. In that case, he said that McGonigal’s enthusiasm for working with someone whom the former FBI agent himself had identified as a Russian spy was only a problem because he was no longer covered by public authority defense. “[O]ne of the critical mistakes he makes in embracing this is that he no longer has the public authority that he had as an FBI agent.” That is, Seth DuCharme, who did set up a way to use dirt from a known Russian spy for a politicized investigation, argued that’s all cool if you’ve got the legal cover of official employ.

By all means, lawyers for Charles McGonigal should point out that DC judges rarely punish government officials who lie by omission that harshly. But in attempting to do that, Seth DuCharme said as much about his own ethics and actions than he did about his client’s crimes.

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Unlike Michael Sussmann, Patrick Byrne Was Not Prosecuted for Providing Allegedly False Tips to the Government

July 24, 2023/25 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, January 6 Insurrection, Mueller Probe /by emptywheel

Among the many records on the Durham investigation DOJ newly released to American Oversight on June 1 is an email, dated August 23, 2019, from Seth DuCharme to Durham and one of his aides revealing that “Overstock CEO gave info to DOJ for John Durham’s review of Russia investigation origins.”

We can be fairly sure what Byrne provided DOJ because he first went on Fox and CNN and laid it all out there. His excuse for getting laid by Maria Butina, he said, was that Peter Strzok told him to do it as an investigative ploy (the reasons why have never really made sense).

“I figured out the name of who sent me the orders and this has been confirmed. The name of the man who sent me was Peter Strzok,” Byrne exclaimed, naming the embattled former FBI agent at the center of the right’s Spygate conspiracies. “This is going to be quite a whirlwind.”

At times bursting into tears, Byrne alleged there was a “big coverup” of “political espionage” that was connected to President Trump, Hillary Clinton, Marco Rubio and Ted Cruz, insisting that “this is not a theory” of his because he was “in the room when it happened.”

“Both catching my friend’s murderer and taking on Wall Street were consistent with my values and it was my honor to help the Men in Black and it was the third time that they came to me,” he said at one point. “And I got some request, I did not know who the hell it came from and it was fishy and three years later on watching television and I realized who it was—it was Peter Strzok and [former Deputy FBI Director] Andy McCabe, that the orders came from.”

Byrne said he decided to come forward with his Deep State concerns because he felt guilty for recent mass shootings.

“But the issue is, I realized that these orders I got came from Peter Strzok, and as I put together things, I know much more than I should know and tried to keep silent,” he said. “Everyone in this country has gone nuts, and especially for the last year when I realized what I know, every time I see one of these things, somebody drives 600 miles to gun down 20 strangers in the mall, I feel a bit responsible.”

[snip]

“No doubt Peter Strzok would watch this and say he’s full of it, I had nothing to do with anything,” the Fox News anchor stated.

Here is my first post on the allegations, written the same day as this Seth DuCharme email.

Strzok would ultimately deny the allegations about him specifically.

In early November, he told me that he had never met Byrne, and had “no awareness” of him before reading about him in the news in August, 2019. When I asked about one of Byrne’s most incendiary claims—whether an F.B.I. agent might instruct someone to pursue a romantic relationship with a suspect in order to gather intelligence—Strzok said that the Bureau had thirteen thousand agents, and that, though he couldn’t dismiss Byrne’s story out of hand, it sounded “extraordinarily fantastical.” He went on, “This isn’t some James Bond film—we don’t tell people, ‘Go bed this vixen for your country.’ ”

And, unless I missed it in John Durham’s report, he did not even include this among the things he investigated.

It’s hard to know how seriously DOJ took it, but DuCharme’s involvement shows it had the same kind of high level interest as the Alfa Bank anomalies. One of Bill Barr’s key advisors was involved in it. And whatever heed DOJ paid to it, would be hard to take Byrne’s allegations less seriously than the Cyber agents who dismissed the Alfa Bank anomalies in barely more than a day, making substantial errors along the way.

Plus, DOJ withheld this information under a b7A exemption, reflecting that it was treated as part of an ongoing investigation, until Durham finished. Someone at DOJ treated this with enough seriousness to bury for four years. Which raises the prospect that Durham believed it was sound to criminalize Michael Sussmann, a Democratic lawyer sharing a honestly held tip, but chose to do nothing about a guy with ties to a convicted Russian agent sharing wild conspiracies.

And here we are, four years later, and Byrne continues to share wild conspiracies, most that undermine American democracy.

And now, amid reports that Jack Smith is zeroing in the December 18, 2020 meeting at which Patrick Byrne and others pitched seizing voting machines, Byrne is suggesting he has — and plans to release — kompromat on Smith (he may have deleted this but this thread repeats the theme).

I’m not saying Byrne should have been prosecuted for making unsubstantiated claims about the Russian investigation — unless the government can tie his motive to Butina’s operation.

I’m saying the contrast with what Durham did with Michael Sussmann and what he didn’t do with Byrne is a stark indicator that he would criminalize Democratic politics while ignoring crazy conspiracies from someone with direct ties to a Russian influence operation.

Update: Added a second part from the FOIA. h/t Brian Pillon.

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Andrew DeFilippis Had a Role in the Prosecution of Gal Luft’s Co-Conspirator-1

July 12, 2023/20 Comments/in 2016 Presidential Election, 2020 Presidential Election, Hunter Biden, Mueller Probe /by emptywheel

James Comer plans to rely on Gal Luft’s testimony in his efforts to gin up conspiracy theories against Joe Biden, even in spite of the indictment against Luft DOJ obtained before James Comer started pursuing his conspiracy theories.

Andrew DeFilippis handled the classified evidence in the Patrick Ho case

Because of that, I want to flag a detail about the Patrick Ho case, the case out of which this one arose.

Ho is the person described as Co-Conspirator-1 in the Luft indictment.

Ho was sentenced on March 25, 2019 for bribing Chadian and Ugandan officials; the former scheme started in a suite in Trump Tower in 2014.

Through a connection, HO was introduced to Cheikh Gadio, the former Minister of Foreign Affairs of Senegal, who had a personal relationship with President Déby. HO and Gadio met at CEFC China’s suite at Trump World Tower in midtown Manhattan, where HO enlisted Gadio to assist CEFC China in obtaining access to President Déby.

Days after Ho was sentenced, the two lead prosecutors on that case, Catherine Ghosh and Daniel Richenthal, flew to Brussels to meet with Luft. As alleged in the indictment, Luft lied to those prosecutors and four FBI agents about both the arms deals and Chinese influence peddling for which he has since been charged.

64. On or about March 28, 2019, in the Southern District of New York, Belgium, and elsewhere outside of the jurisdiction of any particular State or district of the United States, GAL LUFT, the defendant, who is expected to be first brought to and arrested in the Southern District of New York, a matter within the jurisdiction of the executive branch of the Government of the United States, knowingly and willfully made a materially false, fictitious, and fraudulent statement and representation, to wit, LUFT falsely stated during an interview at the United States Embassy in Brussels, Belgium with federal law enforcement officers and prosecutors, in connection with an investigation being conducted in the Southern District of New York, that LUFT had not sought to engage in or profit from arms deals, and instead merely had been asked by an Israeli friend who dealt in arms to check arms prices so that the friend could use this information in bidding on deals, a request that LUFT said he fulfilled by having CC-1 check prices with CC-2 and then relay this information to LUFT–when in fact LUFT had actively worked to broker numerous illegal arms deals for profit involving multiple different countries, both in concert with CC-1 and directly himself, including as described in paragraphs Forty-Four through Fifty-Three above.

[snip]

84. On or about March 29, 2019, in the Southern District of New York, Belgium, and elsewhere outside of the jurisdiction of any particular State or district of the United States, GAL LUFT, defendant, who is expected to be first brought to and arrested in the Southern District of New York, in a matter within the jurisdiction of the executive branch the Government of the United States, knowingly and willfully made a materially false, fictitious, and fraudulent statement and representation, to wit, LUFT falsely stated during an interview at the United States Embassy in Brussels, Belgium with federal law enforcement officers and prosecutors, in connection with an investigation being conducted in the Southern District of New York, that LUFT had tried to prevent CEFC China from doing an oil deal with Iran, that LUFT had been excluded from CEFC China meetings with Iranians, and that LUFT did not know of any CEFC China dealings with Iran while he was affiliated with the company–when in fact, including as described above in paragraphs Sixty-Six through Eighty, LUFT personally attended at least one meeting between CEFC China and Iranians and assisted in setting up additional such meetings for the purpose of arranging deals for Iranian oil, and also worked to find a buyer of Iranian oil while concealing its origin.

Starting in early 2018, DeFilippis handled the classified evidence on the Ho case — both CIPA and a FISA order. He would have spent a great deal of time reviewing what the spooks had obtained on Ho and his associates, undoubtedly including Luft.

Andrew DeFilippis investigated John Kerry for a year

DeFilippis’ efforts on the Ho case took place in parallel with his efforts to gin up a criminal investigation against John Kerry. Here’s how Geoffrey Berman described being ordered to do that by Main Justice.

On May 9, the day after the second Trump tweet, the co-chiefs of SDNY’s national security unit, Ferrara and Graff, had a meeting at Main Justice with the head of the unit that oversees counterintelligence cases at DOJ, which is under the National Security Division.

He said that Main Justice was referring an investigation to us that concerned Kerry’s Iran-related conduct. The conduct that had annoyed the president was now a priority of the Department of Justice. The focus was to be on potential violations of the Logan Act.

[snip]

From the outset, I was skeptical that there was a case to be made. I knew enough about the Logan Act to have strong doubts. Politicians from both sides of the aisle have talked about it from time to time, suggesting that some opponent is in violation of it. It never goes anywhere.

But I figured if they bring us a possible case, we’ll do our best. We’ll look into it. We brought a prosecutor from the national security unit, Andrew DeFilippis, into the investigation.

Trump, meanwhile, kept on tweeting. “John Kerry had illegal meetings with the very hostile Iranian Regime, which can only serve to undercut our great work to the detriment of the American people,” he wrote that September. “He told them to wait out the Trump Administration! Was he registered under the Foreign Agents Registration Act? BAD!”

DeFilippis’ efforts extended into 2019, overlapping with the trial of Ho and the interview with Luft. National Security prosecutors at Main Justice kept pressuring SDNY to advance the investigation into Kerry, but first, Berman had DeFilippis research whether the Logan Act would be chargeable even if Kerry had committed it.

The next step would have been to conduct an inquiry into Kerry’s electronic communications, what’s known as a 2703(d) order. That would have produced the header information—the to, from, date, and subject fields—but not the contents. I decided that before moving forward, it made sense to evaluate whether we would ever have a viable, appropriate charge that matched up with Kerry’s alleged conduct.

At the risk of stating the obvious, under our system of law, pissing off the president is not a chargeable offense. I asked DeFilippis to conduct additional legal research into the Logan Act and other potentially applicable theories. “Look, we’re talking about going to the next step here,” I said.

“But before we do any further investigation, I want to know what the law is on the Logan Act. Let’s say we gather additional documents—I want to know, how is that helping us?”

I wanted to answer the question, even if these things happened, was it a crime? Let’s cut to the chase and find that out, because we’ve got plenty of other work to do and I don’t want us to just be spinning our wheels on this.

For the next several months, DeFilippis conducted extensive research into the Logan Act as well as statutes relating to possible criminal ethics violations by former senior government employees.

On April 22, 2019, Trump tweeted, “Iran is being given VERY BAD advice by @JohnKerry and people who helped him lead the U.S. into the very bad Iran Nuclear Deal. Big violation of Logan Act?”

The tweet was in the morning. That afternoon, Ferrara got a call from Main Justice. He was told that David Burns, the principal deputy assistant attorney general for national security, wanted to know why we were delaying. Why had we not proceeded with a 2703(d) order—the look into Kerry’s electronic communications?

The next day, Burns spoke to Ferrara, Graff, and DeFilippis and repeatedly pressed them about why they had not submitted the 2703(d) order. The team responded that additional analysis needed to be done before pursuing the order.

SDNY decided not to pursue the case against Kerry in fall of 2019.

We spent roughly a year exploring whether there was any basis to further investigate Kerry. Memos were written, revised, and thoroughly discussed.

Our deep dive into the Logan Act confirmed why no one has ever been successfully prosecuted under it in the more than 220 years it has been on the books: the law is not useful. It definitely does not prohibit a former US secretary of state from talking to a foreign official. We did not find that Kerry violated any ethics statutes or any laws having to do with the improper handling of classified material.

In September 2019, DeFilippis advised the National Security Division at Main Justice that we would not be pursuing the case further. He had earlier attempted to tell the specific NSD attorney assigned to the case of our decision, but he couldn’t connect because that attorney was engaged in another matter: the Craig trial.

Sometime after that, DeFilippis became the lead prosecutor on the Durham team, leading the prosecution of Michael Sussmann.

Andrew DeFilippis oversaw the most abusive parts of the John Durham prosecution

Over the course of the Michael Sussmann prosecution, DeFilippis and his prosecution team:

Invented conspiracy theories in an attempt to introduce inadmissible evidence, even while criminalizing the research of private citizens that proved to be true
In the wake of discovering the data in the Alfa Bank allegations was real, asked one of the FBI Agents who utterly botched the review of the Alfa Bank allegations to serve as an expert witness
Took investigative steps that always worked in perfect concert with Alfa Bank’s efforts to undermine American ability to conduct DNS research
Reportedly scolded a Georgia Tech researcher for trying to identify Guccifer 2.0
Coached witness testimony so as to suppress evidence that multiple people at FBI believed the Alfa Bank tip came from the DNC
Submitted a misleading filing that elicited death threats from Donald Trump
Used an investigation into what the Durham Report showed involved Georgia Tech researchers to keep Rodney Joffe off the stand
Tried to perjury tap a Fusion GPS witness based off evidence she couldn’t see
Routinely ignored Judge Christopher Cooper’s orders, including to introduce part of a Hillary Clinton text that had been ruled inadmissible and elicit a non-expert opinion from the non-expert he had tried to make his expert

As noted above, Geoffrey Berman boasted that the investigation into Kerry didn’t leak. Even ignoring the inexplicably perfect concert between Alfa Bank’s efforts and Durham’s, it’s not clear the same can be said about the Durham investigation.

And it’s not just that DeFilippis routinely tried to introduce evidence that served his narrative rather than matched the facts. It’s that DeFilippis repeatedly — most notably in the alleged complaint that researchers working on a DARPA project would attempt to identify which Russians were interfering in the US election — proved more sympathetic of Russian efforts to help get Trump elected than to conduct an ethical prosecution.

Last August, shortly before Durham confessed the utter humiliation of his team at the hand of Sergei Millian, DeFilippis withdrew from the Durham team with almost no notice, left DOJ, and returned — in a Special Counsel role, not as Partner — to Sullivan & Cromwell.

These are just data points. There is no reason, yet, to believe that DeFilippis continues to unethically gin up conspiracy theories against Democrats.

But they are data points I thought worth collecting in one place.

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How Jonathan Swan Covered [Up] John Durham’s Corruption

June 16, 2023/33 Comments/in 2016 Presidential Election, 2024 Presidential Election, Mueller Probe /by emptywheel

Something funny happened yesterday.

Full-time Trump-whisperer Maggie Haberman, Trump-whisperer Jonathan Swan, and DOJ reporter Charlie Savage wrote a story responding to Trump’s promise to appoint prosecutors to investigate Joe Biden and his family just like Biden’s own DOJ has done (which they note). They described that if Trump won a second term, he would “appoint an ally who would bring charges against his political enemies regardless of the facts,” then described how Jeffrey Clark and Russell Vought were already working on the plan.

Mr. Trump appeared to be promising his supporters that he would appoint an ally who would bring charges against his political enemies regardless of the facts.

[snip]

Mr. Clark and Mr. Vought are promoting a legal rationale that would fundamentally change the way presidents interact with the Justice Department. They argue that U.S. presidents should not keep federal law enforcement at arm’s length but instead should treat the Justice Department no differently than any other cabinet agency. They are condemning Mr. Biden and Democrats for what they claim is the politicization of the justice system, but at the same time pushing an intellectual framework that a future Republican president might use to justify directing individual law enforcement investigations.

They make no mention of the cases on which Bill Barr attempted to do just that — bring charges against Trump’s political enemies regardless of the facts: Greg Craig, Jim Comey, Andrew McCabe, John Kerry, among others (though Savage has covered them).

The only mention of Barr’s unprecedented past success at politicizing DOJ includes an important error.

Under Mr. Barr, the Justice Department overruled career prosecutors’ recommendations on the length of a sentence for Mr. Trump’s longest-serving political adviser, Roger J. Stone Jr., and shut down a case against Mr. Trump’s first national security adviser, Michael Flynn, who had already pleaded guilty. Both cases stemmed from the Russia investigation.

Barr’s DOJ did not succeed at shutting down Mike Flynn’s prosecution, in which a sentencing memo, approved by Barr’s DOJ, had already been submitted by the time Barr commenced his efforts. Emmet Sullivan was still deciding whether to grant DOJ’s request to throw out Flynn’s guilty plea when Trump pardoned Flynn; and when Sullivan finally did dismiss the case, he reaffirmed Flynn’s guilty verdict.

NYT’s silence about how Trump really overturned Flynn’s conviction, a pardon, carries over generally. These journalists join Kaitlin Collins in warning of future Trump corruption without bothering to catalog or hold Trump accountable for his past unprecedented corruption, the pardons he used to reward those who lied about what really happened with Russia in 2016. That’s the opposite of accountability journalism, warning of future corruption while remaining silent about the similar corruption that already happened.

But the weirdest thing, coming as it does from a team including both Swan and Savage, is that NYT made no mention of the Durham investigation, in which a Special Counsel appointed under Trump literally did, “bring charges against [Trump’s] political enemies regardless of the facts.”

The silence from Savage is unfortunate given that he has done such important work laying out how that’s what Durham did.

Swan’s silence is more inexcusable.

That’s because — as I documented in real time — Swan was absolutely central in disseminating Durham’s unsubstantiated insinuation that a “Clinton/Dem operative” (Durham’s claim itself relied on exaggeration) was behind the pee tape.

Swan’s judgement, a neutral journalist not just magnifying and repeating Devlin Barrett’s shitty reporting on the Igor Danchenko indictment (Barrett said charges, plural, were tied to Charles Dolan and falsely claimed that Durham had alleged Dolan was the source for the dossier, “rather than well-connected Russians”), but adding his judgment that it “doesn’t get much worse,” went viral, accepted as fact.

I pointed that out, with a hot link to his earlier Tweet.

Swan responded. He ignored the clear factual error about Flynn and the point about pardons, but he conceded that his Tweet “is inaccurate.”

So he deleted it, with only this Tweet recording that he did so and no apology to the two innocent men, Charles Dolan and Igor Danchenko, he falsely accused and — with his viral tweet and his considerable credibility as a journalist — led others to falsely accuse, having done so because of the deliberately misleading way Durham had presented his charges against Danchenko.

Most curiously, Swan explained that he, “never covered Durham.”

It’s absolutely true that he never laid out how Durham, a Special Counsel Trump demanded and got, brought “charges against his political enemies regardless of the facts,” as Savage has. Swan never even, as Barrett did, reported on an indictment and misleadingly claimed uncharged allegations in it were charged conduct. Swan wasn’t the experienced DOJ reporter who first fell for Durham’s affirmatively misleading charging document, Barrett was.

But as a journalist, Swan disseminated Durham’s unsubstantiated, uncharged claims, exacerbated by Barrett’s shitty reporting, and people took his report as true. Swan played a key role in leading the public to believe that a prosecutor who charged Danchenko for making a literally true statement to the FBI about his contact with Dolan had instead found something so bad that, “it doesn’t get much worse.”

Perhaps his role was unwitting. But Swan played a key role in helping Durham to make and lead the public to believe in false claims, “regardless of the facts,” precisely the topic that Swan and his colleagues suggest is just a prospective threat from Trump.

And much of the public still believes Durham’s false claims, in (small) part because of Swan’s own actions.

John Durham is going to go before Congress next week and be asked to explain and repeat demonstrably false claims — outright fabrications, in some cases — that he made in his report. Durham will likely renew his claims, made in his report, that Michael Sussmann and Igor Danchenko lied, even though two juries told him that he made those accusations, “regardless of the facts.”

And Swan, who generously describes that, “the pee tape rumors didn’t bear out,” rather than that a prosecutor made the claim “regardless of the facts,” Swan, who believes the topic of prosecutors who make false claims “regardless of the facts” is a topic worth reporting, thinks that deleting evidence of his own role in disseminating such false claims is sufficient, even as Durham continues to do Trump’s bidding of making false claims in real time.

John Durham is precisely the threat that Haberman and Swan and Savage warned about prospectively, but Swan, having played a role in leading the public to believe Durham’s false claims “regardless of the facts,” thinks that merely deleting the evidence that that’s what Durham has done is sufficient.

If the threat of prosecutors charging Trump’s enemies “regardless of the facts” is worth reporting, than Durham’s ongoing corruption must be covered, not covered up.

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Republicans Demanded Independence for John Durham and Got Robert Hur and Jack Smith in the Bargain

June 14, 2023/70 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, January 6 Insurrection, Leak Investigations /by emptywheel

Even before Trump’s Espionage Act indictment was made public, Trump was attempting to politicize his stolen documents prosecution by demanding — via a Truth Social post— a meeting with Merrick Garland, who is not overseeing the case. Virtually every journalist fell for Trump’s bait, reporting the demand without noting that Jack Smith is the prosecutor overseeing the investigation into Trump, not Merrick Garland.

Garland rightly refused the meeting.

Since then, paid propagandists have been chanting out “Joe Biden Merrick Garland Joe Biden Merrick Garland” talking points like wind-up toys, because repetition is how you get low-information Trump supporters and members of Congress to believe false claims.

This strand of propaganda has worked. The other day, WSJ’s Sadie Gurman, after reviewing how assiduously Merrick Garland remained out of the process, stated as fact that this is a political prosecution.

When a grand jury returned the first-ever federal indictment of a former president last week, Attorney General Merrick Garland made a point of suggesting he was nowhere near the team handling the case.

He strolled into Justice Department headquarters in downtown Washington with his deputy late Thursday afternoon amid intense speculation about charges against Donald Trump and told a Wall Street Journal reporter he had been out getting a Covid vaccine.

[snip]

In keeping with that philosophy, Garland kept details of the indictment and its timing secret from Biden, who said Friday, “I have not spoken to him at all, and I am not going to speak with him.”

The attorney general also declined to meet with Trump’s lawyers, who requested a sit-down in the days leading up to the indictment, leaving the gathering instead to Smith and other Justice Department officials.

[snip]

Yet Garland now presides over what may be the highest-profile political prosecution ever, which is certain to be a prominent factor in the 2024 election. [my emphasis]

Gurman also suggested that Garland somehow engaged in politics by letting Jack Smith unseal the indictment that was sealed to protect security, not to let Trump sow violence in a vacuum.

But Garland didn’t object to prosecutors asking a court to unseal the indictment on Friday, well before Trump’s Tuesday arraignment when it would normally be made public, a person familiar with the matter said.

Finally, Gurman immediately — and, possibly, falsely — suggested that Garland “faces a call” on whether DOJ should charge Hunter Biden.

Adding to the political overtones, Garland also faces a call on whether the Justice Department should file charges against Biden’s son, Hunter, who is under investigation related to his taxes and whether he made a false statement in connection with a gun purchase. Hunter Biden has said he acted legally and appropriately.

Garland only faces a call if he has to approve an indictment. If David Weiss chooses not to prosecute, Garland is not going to override the Trump-appointed US Attorney who has been retained to make this decision himself.

Since yesterday’s arraignment, the false claim that Joe Biden and Merrick Garland have pursued the prosecution of Biden’s rival has gotten crazier still, especially on Murdoch properties other than the one where Gurman invented a political prosecution where there is none. As Trump wailed about his plight at his club yesterday, for example, Fox’s chyron accused Biden of being a “wannabe dictator” because a process entirely insulated from Biden resulted in Trump’s arrest. (Natasha Korecki posted this screen cap.)

There’s something especially noxious about the degree to which actual journalists like Gurman are parroting this line (Jamison Fraser notes a similar example in polling coverage).

Donald Trump is being treated no differently than Biden himself, to say nothing of the targets of John Durham’s abusive four year investigation.

Consider how absurd it is that Trump, lashing out, promised to appoint “a real special ‘prosecutor'” to go after Biden and “the entire Biden crime family.”

The Biden Administration already did that, Bucko!!! It currently has two Trump appointed prosecutors, David Weiss and Robert Hur, conducting investigations into Biden’s son and Biden himself. You’re so inadequate you can’t even out-prosecute Biden than Biden himself is already doing!

Yet, in response to this tweet, almost no journalists noted that Joe Biden’s Administration already did that — retain or appoint two separate Trump-appointed prosecutors to investigate Biden himself.

And that’s a hint of what is affirmatively missing from the coverage of real journalists like Gurman.

It’s that Republicans, and Trump himself, have demanded what they’ve gotten with Merrick Garland’s distance from Jack Smith’s prosecution. Republicans, and Trump himself, have repeatedly demanded that Garland stay out of Weiss’ investigation. They even wailed that Biden was being treated specially after the discovery of classified documents at the Penn Biden Center, until it became clear a preliminary Special Counsel had been appointed within days, in Biden’s case, not months.

Most importantly, none of these Republicans wailing about Garland’s distance from the Jack Smith investigations (wailing because it demonstrates their claims that this is a political prosecution to be obvious bullshit) complained at all after John Durham used the independence Garland afforded him to engage in one after another instance of shocking prosecutorial abuse.

Republicans, and Trump himself, did not complain that Durham investigated for four years even though no crime predicated his investigation (a far worse abuse than Durham’s complaint that Crossfire Hurricane was opened as a Full rather than Preliminary investigation).

Republicans, and Trump himself, did not complain that Durham threatened witnesses and lawyers (and lawyers complained to Merrick Garland in real time; they didn’t wait until a target letter went out to try to excuse their own counterproductive legal advice).

Republicans, and Trump himself, did not complain that in both trials, first his lead prosecutor and then Durham himself, were caught scripting improbable or affirmatively misleading testimony from witnesses.

Republicans, and Trump himself, did not complain that Durham charged Michael Sussmann for coordinating with Hillary’s top staffers months before interviewing any of those staffers and discovering it wasn’t true.

Republicans, and Trump himself, did not complain that Durham charged Igor Danchenko relying, in significant part, on the rants Sergei Millian made on his Twitter feed, only to discover, months later, that Millian was unwilling to repeat the same claims at trial under oath.

Republicans, and Trump himself, did not complain that Durham prosecuted a man for making a literally true statement to the FBI.

Republicans, and Trump himself, did not complain when John Durham accused Sussmann and Danchenko anew of lying to the FBI after two juries told him he couldn’t prove that claim.

Republicans, and Trump himself, did not complain that John Durham fabricated a claim that even the Russians didn’t make against Hillary and used it as his excuse to continue his investigation for three more years.

Republicans, and Trump himself, did not complain when John Durham affirmatively misrepresented the YotaPhone white paper; instead, Trump used Durham’s misrepresentation to justify making death threats against Michael Sussmann.

Republicans, and Trump himself, knew how much independence Merrick Garland was giving Jack Smith, because Durham told them that he committed all that abuse and yet Garland let him continue unimpeded.

Finally, we want to thank you and your Office for permitting our inquiry to proceed independently and without interference as you assured the members of the Senate Judiciary Committee would be the case during your confirmation hearings to become Attorney General of the United States.

And long after it was clear that Garland had given Durham precisely the independence that Republicans, and Trump himself, had demanded, Trump is the one who forced the appointment of a Special Counsel by announcing his run six months ahead of his competitors. Trump took steps that led to someone completely independent investigating his suspected crimes, not Joe Biden, not Merrick Garland. And now he’s trying to pretend that he himself didn’t ensure someone independent would investigate his suspected crimes.

Jack Smith has been living by the rules Republicans demanded, and got, for John Durham.

I don’t expect Trump to care that Jack Smith has been operating under the same rules of independence that Garland gave Durham. Trump needs to claim this is political, to provide his boosters — and probably his own fragile ego — some explanation for this indictment other than that a grand jury of South Floridians determined there was probable cause he committed an unprecedented crime that made this country less safe. I expect Mike Davis to continue reeling out his knowingly false claims, Joe Biden Merrick Garland Joe Biden Merrick Garland. It’s what he is paid to do.

But journalists like Sadie Gurman should know better. Journalists like Sadie Gurman, after presenting proof that Jack Smith is operating with the same independence that John Durham did, owe their readers a description of what it means that this investigation has operated with independence. Journalists like Sadie Gurman should not be drawn in by attempts to delegitimize a prosecution only because Trump belatedly wants to change the rules he himself demanded.

Update: I’ve updated my stolen documents investigation resource page, with key documents, a bit of a timeline, all our posts on the case, plus other useful links (including to dockets of other 18 USC 793 cases).

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Interesting links

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