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The Guy Investigating the Claimed Politicized Hiring of a Special Counsel Insists that the Hiring of a Special Counsel Cannot Be Political

On Monday, both John Durham and Michael Sussmann submitted their motions in limine, which are filings to argue about what can be admitted at trial. They address a range of issues that I’ll cover in several posts:

Sussmann:

Durham wants to:

  • Admit witnesses’ contemporaneous notes of conversations with the FBI General Counsel
  • Admit emails referenced in the Indictment and other, similar emails (see this post)
  • Admit certain acts and statements (including the defendant’s February 2017 meeting with a government agency, his December 2017 Congressional testimony, and his former employer’s October 2018 statements to the media) as direct evidence or, alternatively, pursuant to Federal Rule of Evidence 404(b)
  • Exclude evidence and preclude argument concerning allegations of political bias on the part of the Special Counsel (addressed in this post)
  • Admit an October 31, 2016 tweet by the Clinton Campaign

I will link my discussions in serial fashion.


Here’s how John Durham moved to exclude any evidence that his team was ordered to produce results in time for the 2020 election, bullied witnesses, or treated Hillary Clinton as a more dangerous adversary than Russia.

The Government expects that defense counsel may seek to present evidence at trial and make arguments that depict the Special Counsel as politically motived or biased based on his appointment by the prior administration. Notwithstanding the patently untrue nature of those allegations, such matters are irrelevant to this case and would create a substantial danger of unfair prejudice, confusion, and delay. In particular, the government seeks to preclude the defendant from introducing any evidence or making any argument concerning the circumstances surrounding the appointment of the Special Counsel and alleged political bias on the part of the Special Counsel’s Office. Indeed, the defendant has foreshadowed some of these arguments in correspondence with the Special Counsel and others, and their assertions lack any valid basis.

Only relevant evidence is admissible at trial. Fed. R. Evid. 402. The definition of relevance is inclusive, see Fed. R. Evid. 401(a), but depends on the possibility of establishing a fact that “is of consequence in determining the action,” Fed. R. Evid. 401(b). Evidence is therefore relevant only if it logically relates to matters that are at issue in the case. E.g., United States v. O’Neal, 844 F. 3d 271, 278 (D.C. Cir. 2016); see Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 387 (2008). The party seeking to introduce evidence bears the burden of establishing relevancy. Dowling v. United States, 493 U.S. 342, 351 n.3 (1990).

Here, the defendant is charged with making a false statement to the FBI General Counsel in violation of 18 U.S.C. § 1001. A jury will have to decide only whether the defendant knowingly and willfully made a materially false statement to the FBI General Counsel. Nothing more, nothing less. Baseless political allegations are irrelevant to the crime charged. See, e.g., United States v. Regan, 103 F. 3d 1072, 1082 (2d Cir. 1997) (claims of Government misconduct are “ultimately separate from the issue of [a defendant’s] factual guilt”); United States v. Washington, 705 F. 2d 489, 495 (D.C. Cir. 1983) (similar). Evidence or argument concerning these issues should therefore be excluded. See Fed. R. Evid. 402; see, e.g., O’Neal, 844 F,3d at 278; United States v. Stone, 19 CR 18 (D.D.C. Sept. 26, 2019) ECF Minute Order (granting the government’s motion in limine to exclude evidence or argument regarding alleged misconduct in the government’s investigation or prosecution of Roger Stone).

The only purpose in advancing these arguments would be to stir the pot of political polarization, garner public attention, and, most inappropriately, confuse jurors or encourage jury nullification. Put bluntly, the defense wishes to make the Special Counsel out to be a political actor when, in fact, nothing could be further from the truth.11 Injecting politics into the trial proceedings is in no way relevant and completely unjustified. See United States v. Gorham, 523 F. 2d 1088, 1097-1098 (D.C. Cir. 1975) (upholding trial court’s decision to preclude evidence relevant only to jury nullification); see also United States v. Rushin, 844 F. 3d 933, 942 (11th Cir. 2016) (same); United States v. Castro, 411 Fed. App’x 415, 420 (2d Cir. 2011) (same); United States v. Funches, 135 F.3d 1405, 1408-1409 (11th Cir. 1998) (same); United States v. Cropp, 127 F.3d 354, 358-359 (4th Cir. 1997). With respect to concerns about jury nullification, this Circuit has opined:

[Defendant’s] argument is tantamount to the assertion that traditional principles concerning the admissibility of evidence should be disregarded, and that extraneous factors should be introduced at trial to become part of the jury’s deliberations. Of course a jury can render a verdict at odds with the evidence and the law in a given case, but it undermines the very basis of our legal system when it does so. The right to equal justice under law inures to the public as well as to individual parties to specific litigation, and that right is debased when juries at their caprice ignore the dictates of established precedent and procedure.

Gorham, 523 F.2d at 1098. Even if evidence related to the defendant’s anticipated allegations had “marginal relevance” to this case (which it does not), the “likely (and presumably intended) effect” would be “to shift the focus away from the relevant evidence of [the defendant’s] wrongdoing” to matters that are, at most, “tangentially related.” United States v. Malpeso, 115 F. 3d 155, 163 (2d Cir. 1997) (upholding exclusion of evidence of alleged misconduct by FBI agent). For the foregoing reasons, the defendant should not be permitted to introduce evidence or make arguments to the jury about the circumstances surrounding the appointment of the Special Counsel and alleged political bias on the part of the Special Counsel.

11 By point of fact, the Special Counsel has been appointed by both Democratic and Republican appointed Attorneys General to conduct investigations of highly-sensitive matters, including Attorneys General Janet Reno, Michael Mukasey, Eric Holder, Jeff Sessions and William Barr. [my emphasis]

Durham stuck the section between an extended section arguing that Judge Christopher Cooper should treat the interlinked investigations — by those working for the Hillary campaign and those, working independently of the campaign, who believed Donald Trump presented a grave risk to national security — into Trump’s ties to Russia as a unified conspiracy and another section asking that Clinton Campaign tweets magnifying the Alfa Bank allegations be admitted, even though the argument to include them is closely related.

Even ignoring how Durham pitches this issue, the placement of this argument — smack dab in the middle of an effort to treat protected political speech he admits is not criminal like a criminal conspiracy — seems like a deliberate joke. All the more so coming from prosecutors who, with their conflicts motion,

stir[red] the pot of political polarization, garner[ed] public attention, and, most inappropriately, confuse[d potential] jurors

It’s pure projection, presented in the middle of just that kind of deliberately polarizing argument. From the moment the Durham team — which relied heavily on an FBI Agent who reportedly sent pro-Trump texts on his FBI phone — tried to enhance Kevin Clinesmith’s punishment for altering documents because he sent anti-Trump texts on his FBI phone, Durham has criminalized opposition to Trump.

And Durham himself made his hiring an issue by claiming that the guy who misrepresented his conflicts motion by using it to suggest that Sussmann and Rodney Joffe should be executed, Donald Trump, is a mere third party and not the guy who made him a US Attorney.

But it’s also misleading, for multiple reasons.

The initial bias in question pertains to covering up for Russia, not helping Republicans

Sussmann’s likely complaints at trial have little to do with the fact that Durham was appointed by a Republican. Rather, a key complaint will likely have to do with the fact that Durham was appointed as part of a sustained campaign to misrepresent the entire set of events leading up to the appointment of his predecessor as Special Counsel, Robert Mueller, by a guy who auditioned for the job of Attorney General based on his claims — reflecting his warped Fox News understanding of the investigation — that the confirmed outcome of that investigation was false.

You cannot separate Durham’s appointment from Billy Barr’s primary goal in returning as Attorney General to undermine the evidence of improper Trump ties to Russia. You cannot separate Durham’s appointment, in the same days as Mueller acquired key evidence in two investigations (the Egyptian bank donation and Roger Stone) that Barr subsequently shut down, from Barr’s attempt to undermine the past and ongoing investigation. You cannot separate Durham’s appointment from what several other DC District judges (Reggie Walton, Emmet Sullivan, and Amy Berman Jacksonthe latter, twice) have said was Barr’s improper tampering in the Russian investigation.

That is, Durham was appointed to cover-up Trump’s confirmed relationship with Russia, not to attack Democrats. But in order to cover up for Russia, Durham will, and has, attacked the Democrats who were first victimized by Russia for viewing Russia as a threat (though I believe that Republicans were victimized, too).

That bias has exhibited in the following ways, among others:

  • Treating concern about Trump’s solicitation of further hacks by Russia and his confirmed ties to Russian money laundering as a partisan issue, and not a national security issue (something Durham continues with this filing)
  • Treatment, in the Danchenko case, of Charles Dolan’s involvement in the most accurate report in the Steele dossier as more damning that the likely involvement of Dmitri Peskov in the most inflammatory reports that paralleled the secret communications with Dmitry Peskov that Trump and Michael Cohen lied to cover up
  • Insinuations from Andrew DeFilippis to Manos Antonakakis that it was inappropriate for DARPA to ask researchers to investigate ongoing Russian hacks during an election
  • A prosecutorial decision that risks making sensitive FISA information available to Russia that will, at the same time, signal that the FBI won’t protect informants against Russia

There are other indications that Durham has taken probable Russian disinformation that implicates Roger Stone as instead reliable evidence against Hillary.

Durham’s investigation into an investigation during an election was a key prop during an investigation

Another thing Durham may be trying to stave off is Sussmann calling Nora Dannehy as a witness to explain why she quit the investigation just before the election. Even assuming Durham could spin concerns about pressure to bring charges before an election, that pressure again goes to Billy Barr’s project.

When Durham didn’t bring charges, some of the same documents Durham was reviewing got shared with Jeffrey Jensen, whose team then altered several of them, at least one of them misleadingly, to present a false narrative about Trump’s opponent’s role in the investigation. Suspected fraudster Sidney Powell seems to have shared that false narrative with Donald Trump, who then used it in a packaged attack in the first debate.

This is one of the reasons why Durham’s submission of Bill Priestap’s notes in such a way as to obscure whether those notes have some of the same indices of unreliability as the altered filings in the Mike Flynn case matters.

In other words, Durham is claiming that scrutinizing the same kind of questions that Durham himself has been scrutinizing for years is improper.

The bullying

I find it interesting that Durham claims that, “the defendant has foreshadowed some of these arguments in correspondence with the Special Counsel and others,” without citing any. That’s because the only thing in the record is that Sussmann asked for evidence of Durham bullying witnesses to alter their testimony — in response to which Durham provided communications with April Lorenzen’s attorneys.

On December 10, 2021, the defense requested, among other things, all of the prosecution team’s communications with counsel for witnesses or subjects in this investigation, including, “any records reflecting any consideration, concern, or threats from your office relating to those individuals’ or their counsels’ conduct. . . and all formal or informal complaints received by you or others” about the conduct of the Special Counsel’s Office.” Although communications with other counsel are rarely discoverable, especially this far in advance of trial, the Government expects to produce certain materials responsive to this request later this week. The Government notes that it is doing so despite the fact that certain counsel persistently have targeted prosecutors and investigators on the Special Counsel’s team with baseless and polemical attacks that unfairly malign and mischaracterize the conduct of this investigation. For example, certain counsel have falsely accused the Special Counsel’s Office of leaking information to the media and have mischaracterized efforts to warn witnesses of the consequences of false testimony or false statements as “threats” or “intimidation.”

And this set of filings reveals that Durham is still trying to force Rodney Joffe to testify against Sussmann, even though Joffe says his testimony will actually help Sussmann.

In other words, this may be a bid by Durham to prevent evidence of prosecutorial misconduct under the guise of maintaining a monopoly on the right to politicize the case.

Normally, arguments like this have great merit and are upheld.

But by making the argument, Durham is effectively arguing that the entire premise of his own investigation — an inquiry into imagined biases behind an investigation and later appointment of a Special Counsel — is illegitimate.

As we’ll see, what Judge Christopher Cooper is left with is nothing more than competing claims of conspiracy.

Durham Prosecutor Andrew DeFilippis Confirmed to Rodney Joffe He May Continue Indefinitely

On Monday, both John Durham and Michael Sussmann submitted their motions in limine, which are filings to argue about what can be admitted at trial. They address a range of issues that I’ll cover in several posts:

Sussmann:

Durham wants to:

  • Admit witnesses’ contemporaneous notes of conversations with the FBI General Counsel
  • Admit emails referenced in the Indictment and other, similar emails (see this post)
  • Admit certain acts and statements (including the defendant’s February 2017 meeting with a government agency, his December 2017 Congressional testimony, and his former employer’s October 2018 statements to the media) as direct evidence or, alternatively, pursuant to Federal Rule of Evidence 404(b)
  • Exclude evidence and preclude argument concerning allegations of political bias on the part of the Special Counsel (addressed in this post)
  • Admit an October 31, 2016 tweet by the Clinton Campaign

I will link my discussions in serial fashion.


In a motion to dismiss, Michael Sussmann just requested that Judge Christopher Cooper give Special Counsel Durham a choice: either immunize Rodney Joffe, or dismiss the case.

Sussmann wants to call Joffe to provide exculpatory testimony.

Mr. Joffe would offer critical exculpatory testimony, including that: (1) Mr. Sussmann and Mr. Joffe agreed that information should be conveyed to the FBI and to Agency-2 to help the government, not to benefit Mr. Joffe; (2) the information was conveyed to the FBI to provide a heads up that a major newspaper was about to publish a story about links between Alfa Bank and the Trump Organization; (3) in response to a later request from Mr. Baker, Mr. Sussmann conferred with Mr. Joffe about sharing the name of that newspaper before Mr. Sussmann told Mr. Baker that it was The New York Times; (4) the researchers and Mr. Joffe himself held a good faith belief in the analysis that was shared with the FBI, and Mr. Sussmann accordingly and reasonably believed the data and analysis were accurate; and (5) contrary to the Special Counsel’s entire theory, Mr. Joffe was neither retained by, nor did he receive direction from, the Clinton Campaign.

But after Joffe’s lawyer Steven Tyrell received Sussmann’s trial subpoena, he asked Andrew DeFilippis if he remained a subject of the investigation — more than five years after his last action in this case — DeFilippis stated that he continued to chase vague claims about the YotaPhone allegations shared in the February 9, 2017 meeting with the CIA.

On March 31, the day after receipt of the subpoena, I spoke by telephone with representatives of the Office of Special Counsel (“OSC”) in an effort to obtain sufficient information from which I could assess and advise my client whether he has a credible fear of prosecution. I then explained that I had requested an update because my client had received your trial subpoena. Given the impending trial date, I stated that we wished to inform you as soon as possible whether Mr. Joffe intends to invoke his Fifth Amendment rights if called to testify. I indicated that Mr. Joffe has a desire to testify, but he has concerns about doing so ifhe is a subject of the OSC’s investigation. In response, Mr. Defilippis confirmed that Mr. Joffe remains a subject of the investigation (as he has been since our first contact with the OSC fifteen months ago). I then asked if Mr. DeFilippis could explain what basis remains for Mr. Joffe’s possible prosecution. Rather than provide any additional information to aid in our assessment of the risk of prosecution, Mr. Defilippis stated that in his view, Mr. Joffe’s status in the investigation was sufficient to establish a good faith basis to invoke the privilege against self-incrimination. Mr. Defilippis further stated that OSC did not want to get into any more detail, and presumed that Latham would understand if Mr. Joffe decided to invoke.

I then stated to Mr. DeFilippis that more than five years has elapsed since the events that are described in the indictment against your client and the OSC’s related public filings, including the September 19, 2016, meeting with the FBI and the February 9, 201 7, meeting with , and asked what other basis the OSC might have to charge Joffe with criminal conduct. Mr. Defilippis replied in general terms that while it was fair to say that the Alfa-related allegations tied back to Sussmann’s September 19, 2016 meeting, the Yota phone-related allegations continued to “percolate through various branches of the government and around the private sector after that date, in various forms.” Defilippis further noted that certain fraud statutes have longer than a five-year limitations period, although he did not specify what statutes might be implicated by the events in question. Beyond that, Mr. Defilippis was unwilling to comment further. In light of Mr. Defilippis’ unwillingness to provide additional information, I asked whether he ever envisioned an end to my client’ status as a subject of the OSC’s investigation, and if so, when that might be. Mr. Defilippis indicated that he was unable to put an end date on the investigation at this point, and that it would depend upon various factors, including the conduct in question and the applicability of various limitations periods. [my emphasis]

According to Sussmann attorney Sean Berkowitz, just weeks ago, Durham was pressuring Joffe to testify against Sussmann.

Third, given the Special Counsel’s repeated entreaties to Mr. Joffe to cooperate in the Special Counsel’s investigation against Mr. Sussmann, including only weeks ago, the Special Counsel’s refusal to confer immunity on Mr. Joffe, and the Special Counsel’s insistence that Mr. Joffe continues to face criminal exposure, seems to be not only retaliatory, but tantamount to a “deliberate[] deni[al] [of] ‘immunity for the purpose of withholding exculpatory evidence and gaining a tactical advantage through such manipulation.’” Ebbers, 458 F.3d at 119 (citation omitted). As in Smith, “[i]f the witness were guilty of [the threatened offenses], he should have been charged with those offenses whether he testified or not. The [Special Counsel is] obviously threatening the witness to stop him from testifying-even truthfully.” Simmons, 670 F.2d at 369 (describing Smith, 478 F.2 at 979).

The message is clear: John Durham will keep his investigation open indefinitely so he can threaten to prosecute anyone for testimony that doesn’t confirm his preconceived prior beliefs, even on things that make the strained Sussmann charge look conventional by comparison.

Durham doesn’t want truthful testimony. He wants testimony that will bolster his conspiracy theories. And he’s willing to continue indefinitely to get it.

Before John Durham’s Originator-1, There Was a Claimed BGP Hijack

In this post, I described that “Phil,” the guy I went to the FBI about because I suspected he had a role in the Guccifer 2.0 persona, had a role in the Alfa Bank story. As noted, Phil’s provable role in pushing the Alfa Bank story in October 2016 was minor and would have no effect on the false statement charge — for an alleged lie told in September 2016 — against Michael Sussmann. But because of Durham’s sweeping materiality claims, it might have an impact on discovery.

It has to do with the theory that Alfa Bank has about the DNS anomalies, a theory that Durham seems to share: that the data was faked.

As Alfa laid out in its now abandoned John Doe lawsuits, it claims that the anomalous DNS traffic that Michael Sussmann shared with the FBI in September 2016 was faked. The bank appears to believe not just that the data was faked, but that April Lorenzen is involved in some way. For example, it describes that Tea Leaves and “two accomplices” were sources for Franklin Foer (though elsewhere, the lawsuit claims that Tea Leaves was pointed to the data by the unknown John Doe defendants).

Durham seems even more sure that Lorenzen is the culprit. For example, he always refers to the data as “purported.” He refers to Lorenzen as “Originator-1” rather than “Data Scientist-1” or “Tea Leaves,” insinuating she fabricated the data. And when Sussmann asked for all evidence indicating that Durham had bullied witnesses, Durham provided emails involving Lorenzen’s lawyers.

Alfa Bank might be excused for imagining that Lorenzen is the primary culprit to have fabricated the data. According to Krypt3ia, when Alfa asked him for his communications, he only had one email, with a different journalist, to share. They quite clearly don’t understand that someone else was involved in publicizing these claims.

Durham doesn’t have the same excuse.

That’s because DOJ – of which Durham remains a part – knows at least some of the details about “Phil” that I laid out in my last post. Because they would have checked Twitter to vet some of my most basic claims, they almost certainly obtained the Twitter DMs (or at least the metadata) showing that Phil brokered the tie between Krypt3ia and the NYT.

To be clear: I have no evidence that Phil altered the DNS records. I’m agnostic about what caused the anomaly (though am convinced that the experts involved believe the anomaly is real, even if they offer varying explanations for the cause). But Durham has made the source of the anomaly an issue to bolster his claims about materiality. And, as Sussmann noted in a recent filing, “Much as the Special Counsel may now wish to ignore the allegations in the Indictment, he is bound by them.” So, it seems, Durham’s on the hook for telling Sussmann if DOJ knows of anyone else involved in pushing the Alfa Bank story who could be a possible culprit for fabricating the data, especially if that person was known to have clandestinely signed a comment, “Guccifer 2.0.”

Phil probably faked a BGP hijack

The fact that Phil alerted the NYT to the Russian proxy of Lorenzen’s data matters not just because he had, months earlier, claimed to work for an FSB-led company and, even before that, claimed to have been coerced by Russian intelligence at an overseas meeting before the known DNC operation started.

It also matters because (I believe) Phil faked an Internet routing record in the same month the Alfa/Trump/Spectrum anomalies started.

In May 2016, Phil shared what he claimed was a traceroute of a request to my site, an Internet routing record that is different than but related to the DNS records at the heart of the Alfa Bank story. The screencap he sent me purported to show that a request to my site had been routed through (to the best of my memory) some L3 routers in Chicago, to Australia, back to those L3 switches, to my site. Phil was claiming to show me proof that someone had diverted requests to my site overseas along the way – what is known as a BGP hijack. Phil showed this to me in the wake and context of a DDOS attack that had brought my site down for days, an attack which led me to rebuild my site, change hosts, and add Cloudflare DDOS protection.

May 2016, the month Phil showed me what I believe to be a faked traceroute, is the same month the anomalous traffic involving Alfa Bank, Spectrum Health, and a Trump-related server started.

Phil used that traceroute to claim that the US intelligence community was diverting and spying on traffic to my website.

The claim made no sense. The only thing that diverting my traffic would get spies is access to my readers’ metadata, which would be readily accessible via easier means, including with a subpoena to my host provider. Aside from a bunch of drafts that I’ve decided didn’t merit publication, there’s no non-public content on my site. I was not competent (and did not ask others) to assess the validity of the screencap itself, but I considered it unreliable because it didn’t show the query or originating IP address behind the record, which would be needed to test its provenance.

I don’t have that original traceroute (I replaced my phone not long after he sent it). But in June 2016 he shared a reverse DNS look-up related to my site that wasn’t altered but in which Phil invoked the earlier one.

I corrected him in this case – this IP address was readily explainable; it was Cloudflare (which Phil surely knew). But Phil nevertheless repeated his earlier claim that “they” were hijacking my traffic.

When I said that Phil had been tracking how requests to my site worked for some time before he left a comment signed [email protected] in July 2016, this weeks-long exchange is what I was referring to. He had, effectively, been watching as I added Cloudflare protection to my site.

These screencaps show that Phil, who months later would play a role in pushing the Alfa Bank story, was using DNS records — real and possibly faked — as a prop in a false story.

Phil tracked DOD contracts closely

That’s not the only detail that DOJ may know about that Durham should consider before insinuating that Lorenzen is the most likely culprit if this data was fabricated. DOJ may know that Phil tracked DOD contracts very closely. That’s important because it explains how Phil could have learned researchers would be looking closely at DNS records.

For years, I’ve believed that the Alfa-Trump-Spectrum Health effort was disinformation, because so much of what came out that year was and because I viewed the Spectrum Health stuff to be such a reach. My belief it might be disinformation only grew stronger when I discovered the focus on Spectrum Health, with its link to Erik Prince’s sister’s spouse, came just after Prince had asked Roger Stone about his efforts to reach out to WikiLeaks.

Certainly, Putin exploited the allegations afterwards to his advantage. He used them to push Alfa Bank’s Petr Aven to take a primary role in reaching out to Trump during the transition, at least as recounted in the Mueller Report.

According to Aven, at his Q4 2016 one-on-one meeting with Putin,981 Putin raised the prospect that the United States would impose additional sanctions on Russian interests, including sanctions against Aven and/or Alfa-Bank.982 Putin suggested that Aven needed to take steps to protect himself and Alfa-Bank.983

981 At the time of his Q4 2016 meeting with Putin, Aven was generally aware of the press coverage about Russian interference in the U.S. election. According to Aven, he did not discuss that topic with Putin at any point, and Putin did not mention the rationale behind the threat of new sanctions

Aven even used Richard Burt, one of the people scrutinized by the Fusion and DNS research, to reach out to Trump, effectively pursuing precisely the back channel between Alfa and Trump that Fusion suspected months earlier.

The relevant part of Aven’s interview is redacted, so it’s not clear whether Aven mentioned that Alfa Bank had been a key focus of the interference allegations. But that’s the presumptive subtext: along with the Steele dossier, the DNS anomaly – both of which, in several lawsuits since, Aven or Alfa have claimed were “gravely damaging” – raised suspicions about Alfa Bank and made it more likely the bank would be sanctioned than had been the case previously.

And before the bank did get sanctioned last month, Alfa was using the DNS anomaly to conduct a lawfare campaign to learn how the US uses DNS tracking to thwart hacks (one wonders if Putin ordered that campaign, like he personally ordered Aven to reach out to Trump). That campaign even got a bunch of frothy right-wingers to decry efforts to prevent and detect nation-state hacks on the US. So at the very least, Russia has exploited the Alfa-Trump allegations to great benefit, one measure of whether something could be deliberate disinformation.

But as I’ve talked to people who’ve tried to figure out what the anomaly was – including experts who believed it did reflect real communication as well as some who didn’t – they always explained that seeding disinformation in such a fashion would be useless. That’s because you couldn’t ensure that any disinformation you planted would be seen. That is, unlike the Steele dossier, which was being collected by an Oleg Deripaska associate and shared with the press (and for which there’s far more evidence Russia used it to plant disinformation), you could never expect the disinformation to be noisy enough to attract the desired attention.

In the years since the original story, how researchers who found the anomalous data obtained the DNS data has driven a lot of the hostility behind it. The researchers have tried to hide where they got the data for proprietary and cybersecurity reasons. John Durham has alleged there was some legal impropriety behind using it, even when used (as the researchers understood they were doing) to research ongoing nation-state hacks. And Alfa Bank was using lawfare to try to find out as much about the means by which this DNS traffic was observed by cybersecurity experts as possible. The full story of how the researchers accessed the data has yet to be reported, but as I understand it, there’s more complexity to the question than initially made out or than has made it into Durham’s court filings. That complexity would make it even harder to anticipate where DNS researchers were looking. So, multiple experts told me, it would be crazy to imagine anyone would have thought to seed disinformation in DNS records expecting it’d get picked up via those collection points in 2016, because no one would have expected anyone was observing all those collection points.

If a Fancy Bear shits in the DNS woods but there’s no one there to see it, did it really happen?

But there was, in fact, a way to anticipate it might get seen.

As the Sussmann indictment vaguely alluded to and this NYT story laid out in detail, researchers found the DNS anomalies in the context of preparing a bid for a DARPA research contract.

The involvement of the researchers traces back to the spring of 2016. DARPA, the Pentagon’s research funding agency, wanted to commission data scientists to develop the use of so-called DNS logs, records of when servers have prepared to communicate with other servers over the internet, as a tool for hacking investigations.

DARPA identified Georgia Tech as a potential recipient of funding and encouraged researchers there to develop examples. Mr. Antonakakis and Mr. Dagon reached out to Mr. Joffe to gain access to Neustar’s repository of DNS logs, people familiar with the matter said, and began sifting them.

Separately, when the news broke in June 2016 that Russia had hacked the Democratic National Committee’s servers, Mr. Dagon and Ms. Lorenzen began talking at a conference about whether such data might uncover other election-related hacking.

The DOD bidding process provided public notice that DARPA was asking researchers to explore multiple ways, including DNS traffic, to attribute persistent hacking campaigns in real time.

The initial DARPA RFP was posted on April 22, 2016, ten days before the anomalous traffic started but well after the Russian hacking campaign had launched (documents FOIAed by the frothers reveal that the project was under discussion for months before that). This RFP provided a way for anyone who tracked DOD contracts closely to know that people would be looking and the announcement itself included DNS records and network infrastructure among its desired measurements. Depending on the means by which DARPA communicated about the contract, it might also provide a way to find out who would be looking and how and where they would be looking, though as I understand it, the team at Georgia Tech would have been an obvious choice in any case.

Phil tracked DOD contracts very closely. In September 2016, for example, he sent me a text alerting me to a new Dataminr contract just 66 minutes after I published a post about the company (I later wrote up the contract).

Phil also told me, verbally, he was checking what contracts DOD had with one of the US tech companies for which a back door was exposed in summer 2016. He claimed he was doing so to see how badly the government had fucked itself with its failure to disclose the vulnerability. By memory (though I am not certain), I believe it was Juniper Networks, in the wake of the Shadow Brokers release of an NSA exploit targeting the company.

And even on top of Phil’s efforts to convince me that the DNC hack wasn’t done by APT 28, DOJ has other evidence that Phil tracked APT attribution efforts closely, even using official government resources to do so. So it would be unsurprising if he had taken an interest in a contract on APT attribution in real time.

Durham may have access to some or all of this

Durham insinuates the DNS records are faked and he appears to want to blame Lorenzen for faking them. But he may be ignoring evidence in DOJ’s possession that someone else who, I’ve now confirmed, played at least a minor role in pushing the Alfa Bank story was using Internet routing records, possibly faked, to support a false story in May 2016.

To be sure: while I know the investigation into Phil continued at least the better part of a year after my FBI interview about him, any feedback I’ve gotten about that investigation has been deliberately vague. So aside from the obvious things – like the Twitter records that would show Phil’s DMs with Krypt3ia and Nicole Perloth – I can’t be sure what is in DOJ’s possession.

I don’t even know whether the 302 from my FBI interview would mention Phil’s pitch of the Alfa Bank story to me. It was on a list of the things I had intended to describe in that interview. But I didn’t work from the list in the interview itself and I have no affirmative memory of having mentioned it. If I did, it would have amounted to me saying little more than, “he also was pushing the Alfa Bank story.”

That said, unless the FBI agents were epically incompetent, my 302 should mention Alfa Bank, because I’m absolutely certain I raised this post and its emphasis on the inclusion of Alfa Bank in an alarming April 2017 BGP hijack.

And in fact, there’s a way Durham could have found out about Phil’s role in the Alfa Bank story independent of my FBI interview. Of just two people in the US government with whom I shared some of the Alfa Bank-related texts I exchanged with Phil (both were Republicans), one was centrally involved in the investigations that fed into the Durham investigation. If this stuff matters, Durham should ask why several of his key source investigations didn’t focus on it.

Durham should know that Phil had a role in the Alfa Bank story.

And given his insinuations in the indictment that Lorenzen fabricated DNS data in May 2016, making the insinuation part of his materiality claims, Durham may be obligated to tell Michael Sussmann that DOJ already knows of someone who was pushing the Alfa Bank story who used DNS data to tell a false story in May and June 2016.

The Alfa Bank Dark Net at Noon

Before its John Doe nuisance lawsuits got shut down by Vladimir Putin’s invasion of Ukraine, Alfa Bank made several claims that led me to chase down a minor – but potentially important – part of the Alfa Bank story.
Someone totally uninvolved in the Michael Sussman/Fusion/April Lorenzen effort played a role in making their efforts public in 2016: “Phil,” the guy about whom I went to the FBI in 2017. As I told the FBI, I suspected he had played a role in the Guccifer 2.0 and Shadow Brokers operations.

This post will focus on what Alfa Bank got wrong. A follow-up post will look at why, if John Durham made the same error, it may matter for the Michael Sussmann case.

Someone exposes Tea Leaves’ research via Krypt3ia

At issue is this post on the eponymously-named InfoSec blog Krypt3ia. As the post describes, someone tipped Krypt3ia off to a WordPress site and a purported i2p site (also called an “eepsite”) that laid out a version of the claims that Michael Sussmann had shared with the FBI and the NYT in September 2016.

Those claims are at the heart of the false statement charge against Sussmann.

Along with the basic allegations about weird DNS look-ups between servers from Alfa Bank and Spectrum Health and a Trump marketing server, those sites also revealed that after the NYT called Alfa Bank for comment about the DNS anomaly in September 2016, the Trump DNS address changed. This is the digital equivalent of someone changing their phone number after discovering they were being surveilled. The seeming response by Trump to the NYT call to Alfa for comment has always been regarded as the smoking gun showing human acknowledgement of the communications (a report from Alfa Bank attempted, unpersuasively, to contest that).

By connecting to a Russian-hosted proxy service, the Krypt3ia post about all this added an element of Russian mystery to the story. But that’s it. The post offered no other new content.

The Krypt3ia post is more important for the function it played than its content. Krypt3ia’s post served to make the contents of a publicly available but difficult to find i2p site – believed to be created by data scientist April Lorenzen, but written under the pseudonym Tea Leaves – accessible.

In response to tips from source(s) of his, Krypt3ia focused attention on a series of communications, none tied in his post to a then-identified person. First, someone alerted him to the WordPress site. That site spoke of Tea Leaves as a third person; there was never a pretense that it was Tea Leaves or Lorenzen. Krypt3ia learned of that WordPress site because someone approached Krypt3ia, purportedly asking for help finding an incomplete i2p address listed in the post.

I caught wind of the site when someone asked me to look at an i2p address that they couldn’t figure out and once I began to read the sites [sic] claims I thought this would be an interesting post.

That tip led Krypt3ia to find what was actually a proxy allowing access to a real i2p site – the one that injected an air of Russian mystery to the story.

First off, the i2p address in the WordPress site is wrong from the start. Once I dug around I found that the real address was gdd.i2p.xyz which is actually a site hosted on a server in Moscow on Marosnet.

That led Krypt3ia to ask whether anyone at NYT wanted to verify the claim that Trump Organization seemingly took action after NYT called Alfa.

I also have to wonder about this whole allegation that a NYT reporter asked about this.

Say, any of you NYT’s people out there care to respond?

Ask and you shall receive! Someone–as I lay out below, I have confirmed that this was “Phil”–put Krypt3ia in touch with a NYT reporter.

First off, someone in my feed put me in touch with the NYT and a reporter has confirmed to me that what the site says about NYT reaching out and asking about the connections, then the connections going bye bye is in fact true.

[snip]

The biggest takeaway is that the NYT confirmed that they asked the question and shit happened. They are still looking into it.

In an update, someone purporting to be Tea Leaves responded to Krypt3ia via an untraceable Tutanota email account, and in response, Krypt3ia posed a bunch of questions, only to get no answer. That non-answer was a key reason why Krypt3ia later treated the allegations as a fraud – an opinion that Alfa Bank, at least, used to bolster their own claims of fraud.

As Krypt3ia mused in real time, it seemed that the entire point of the tips he was receiving was focusing attention on the allegations themselves. Except, if your goal was to release a story that might swing an election, it was a really weird way of doing so.

One does wonder though just who might be trying this tac to attempt to cause Donny trouble. It seems a half assed attempt at best or perhaps they were not finished with it yet.. But then why the tip off email to someone who then got in touch with me? Someone I spoke to about this alluded to maybe that was the plan, for me to blog about this from the start..

[snip]

I have to say it though, these guys are trying to get the word out but in a strange way. I mean this eepsite is now hosted in Czechoslovakia, staying with the Baltic flavor but why not broadcast this more openly? Why does the WordPress site have the wrong address to start and then the other eepsite disappears after a little poking and prodding?

There are at least four unattributed or unattributable communications that appeared in this post: an email to someone who, in turn, got in touch with Krypt3ia; a tip about the WordPress site (presumably from the person who got the email) and through it to the i2p gateway; the contact with the unnamed NYT reporter; and the email from someone claiming to be Tea Leaves via a service that made it impossible to prove it was the person who originally adopted that pseudonym.

Notably, this all happened between October 5, 2016 – before the Podesta drop and the DHS attribution of the DNC hack to Russia – and the days after it. Krypt3ia was checking out the i2p proxy on October 7, at 3:08PM ET – less than half an hour before DHS would release an unprecedented attribution statement, followed shortly by the Access Hollywood video, followed shortly by the first Podesta email drop. Krypt3ia wrote his post the following day.

i2p sites aren’t supposed to get noticed

To understand why using Krypt3ia to get noticed is so weird, you need to understand a little about i2p.

i2p is a network like Tor that provides obscurity and security. Even today, it’s far less accessible than Tor (and was even more so in 2016). Krypt3ia could credibly access it, but I couldn’t have. Reporter Eric Lichtblau or Fusion GPS’ Laura Seago probably couldn’t have either. Normally you need either a special browser or a gateway to to access an eepsite. Importantly, the public DNS routing information that was at the heart of the project that discovered the Alfa Bank anomalies doesn’t exist for i2p. You can’t just Google for a site.

If data scientist April Lorenzen put her research on an i2p site, as alleged, she may have done so to limit who noticed it and her role in it.

It didn’t work out that way.

(Note, because the Durham investigation remains ongoing, I am not contacting her or her lawyers for comment or others who are obviously still the focus of Durham’s investigation.)

Krypt3ia didn’t link directly to her i2p site at first. He started by linking a gateway, which would be accessible to mere mortals who don’t have an i2p browser or technical prowess. His second link may have been a different gateway – again, a link readily accessible to people without using special software. It was one of these links that got sent around by journalists and researchers.

That’s what I mean about content versus function: Krypt3ia added no new content to this story. He did, however, make parts of it accessible to people – like reporters – who would otherwise never have found it.

A comment purportedly from Lorenzen sent to Krypt3ia’s site, playing on Tea Leaves’ name, expressed (or feigned) surprise at finding what the email called a mirror (but which was a proxy).

Thank you to https://krypt3ia .wordpress.com for pointing out a possible mirror of this (the original, what you are reading, http://gdd.i2p). We did not know about gdd.i2p.xyz until hearing about it from Krypt3ia. So we did a little research and see that i2p.xyz has been around for years and appears to mirror a lot of *.i2p sites. *i2p.xyz probably functions as an alternative for everybody that doesn’t have the skills to reach an i2p site :)

Next question, why would somebody first mirror – and then drop their mirror – of our http://gdd.i2p website. The following is just speculation: maybe normally i2p.xyz just mirrors everything but oops! Something hot – drop the mirror. I don’t know. I didn’t try to visit it. Mirrors of course could choose to alter content and measure who visits. We have no such opportunity to see who is visiting our real i2p site.

Whoever wrote the email, it emphasized how the proxy was different from the “real i2p site:” The proxy “functions as an alternative for everybody who that doesn’t have the skills to reach an i2p site,” but it also can “measure who visits” whereas a “real i2p site” cannot.

Whatever the story behind the Krypt3ia post, it had the effect of making it clear that researchers who believed they could find hackers by looking at public DNS data couldn’t hide what they were doing, even on networks designed to be untrackable. It had the effect of making it clear their efforts to look for Russian hackers in DNS data had been seen.

Alfa Bank alleges the Krypt3ia notice is part of an imagined conspiracy targeting the bank

It also appears to have convinced Alfa Bank that Krypt3ia was a key cog in the publication of this story. Their lawsuit claimed that,

The scientists and researchers who obtained the nonpublic DNS data deliberately leaked portions of that data to other scientists and researchers and, ultimately, to the media.

Depositions in the Alfa Bank lawsuit make it clear that Alfa believed (presumably because of those characteristics about i2p) that Fusion GPS must have been behind the effort to alert Krypt3ia to the research site and, via his post, to alert the public.

In a February 10 bid to overcome privilege claims that Fusion GPS’ Laura Seago had previously made, Alfa Bank lawyer Margaret Krawiec argued that Seago must have breached any privilege by sharing information from the publicly posted Tea Leaves information. Krawiec’s logic was that someone internal to the privilege claims asserted by Perkins Coie must have told Seago where the i2p site was, because otherwise there would be no way she could find it.

Krawiec: So, your honor, let me jump in there because one of the things that happened is that we were trying to understand how it was that Ms. Seago knew that this data had been published on the internet because it was published in an obscure place in the internet by this Tea Leaves that I told you about.

And then what Fusion did was – so we asked about that. We said, “How did you know where to look for that data? Who told you?” Cut off, instruction not to answer, privileged. But guess what they did with those links of that data? They took that data that someone told them because no one would have known to find it where it was unless someone told them.

And they wouldn’t tell us who told them or how they found it, but then they took all those links – the supposed public source research – and disseminated it to seven or eight media outlets saying you have to check this out. This is big stuff.

Fusion’s lawyer Joshua Levy countered that the link and the site itself were public.

Levy: If you – if you take the example that Alfa-Bank’s lawyer just presented to the Court, the link that someone at Fusion had circulated to a reporter, that link is a link to the internet. It’s a publicly available link, right?

The link – it’s, it’s like sending a New York Times article to a reporter at the Washington Post. Have you – have you seen this article? You should look at it. It’s interesting. Here’s a link. It happens to do with the subject matter which (indiscernible) is fascinated, [sic] but it’s a publicly available link.

Ms. Seago may have had communications internally at Fusion about that link. Those are privileged communications, but the link itself is available online for the Court, for me, for Ms. Krawiec. It’s public. There’s, there’s nothing confidential about that link.

Alfa’s lawyer responded by arguing that because an i2p site was so difficult to find, Seago’s knowledge of its location must have come from privileged information, and because she subsequently shared a link to a gateway with journalists, she had waived privilege.

Krawiec: Your Honor, I can tell you that where this link was when it was on the internet, you, myself, Mr. Levy, no one could have found that by doing a basic Google search. They were instructed where to find it in this obscure location.

And all we were trying to understand is who instructed them because the person who posted it was Tea Leaves, the anonymous computer scientist who had this computer data.

Alfa’s lawyer argued, not unreasonably, that because Tea Leaves’ site could not have been discovered by a Google search, someone connected to Tea Leaves must have told Fusion where it was, and because Fusion, in turn, shared a link to it, any privilege around Fusion’s discussions about Tea Leaves had therefore been breached.

Alfa’s focus on how Tea Leaves’ i2p site became public continued during a February 14 deposition of Peter Fritsch. In it, Alfa raised an email from Seago to Fritsch describing that Krypt3ia had become aware of Tea Leaves’ work, in response to which questions Fritsch pled the Fifth. By the time Krypt3ia posted, it seems likely, Fusion already knew April Lorenzen was involved.

But in the Seago hearing, Fusion lawyer Joshua Levy stated clearly that, “Our client didn’t move that specific communication –” pushing Tea Leaves’ information (from the context, it’s unclear to me whether this was a link directly to a gateway to Tea Leaves i2p site or one that involved Krypt3ia). Elsewhere Levy explained that Mark Hosenball had sent the link to Fusion which, in turn, sent it out to other journalists.

Fusion’s claims are consistent with them knowing of Lorenzen’s work before the Krypt3ia post, but having nothing to do with the Krypt3ia post and/or public links directly to Lorenzen’s site.

“Phil” hooked Krypt3ia up with the NYT

Alfa Bank seems to doubt Fusion’s denials that they were behind all those levels of notice to Krypt3ia.

I have no idea who first alerted Krypt3ia to the WordPress site or the i2p site, and he says he doesn’t remember who did. I do know who hooked him up with the NYT.

As I noted when I criticized this story in 2016, I was pitched the Alfa Bank story, like the NYT. But unlike the NYT, I was not pitched it by the people Durham is trying to put in jail like Sussmann, the researchers, or Fusion GPS. I was pitched it by the guy whom I’ve referred to by the pseudonym “Phil,” the person I went to the FBI about in 2017. (This is a pseudonym and he has not been charged by DOJ.)

Not only did he pitch me on it, but he told me he was the one to have hooked Krypt3ia up with the NYT reporter.

The rest of our exchange is below…

The claim that Phil had introduced Krypt3ia to a NYT reporter was credible. At the time I knew of several NYT reporters he claimed to have ties to (at Phil’s request, I had introduced him to one of them, and I’ve confirmed his contacts with others since). He also publicly interacted with Krypt3ia on Twitter.

But I had never checked whether Phil had really introduced the NYT to Krypt3ia until the Alfa Bank filing that blamed that tie on Fusion.

Nicole Perloth has confirmed it was Phil. As she described, Phil basically pushed Krypt3ia on her. “Nicole: Krypt is a person who can be an invaluable resource on this,” specifically addressing Krypt3ia‘s expertise on the dark web, even while asking her to keep him (Phil) updated on when the story would be published.

When I asked Krypt3ia if it was possible that the same person alerted him to the i2p site as had connected him to a NYT journalist, he said he did not remember.

Do you know if the person who connected you with the NYT reporter was the same was the one who pointed out the mirror? As per your post? Or don’t you remember?

Honestly don’t remember. Did not take notes or anything, thought it all bullshit and some kind of game of disinformation.

Whether or not Phil had a role in first tipping Krypt3ia off to the i2p proxy, he had a role in making the NYT aware of a series of moving versions of that site, starting with the one in Russia.

Importantly, this is not the only attempt to broker these allegations that remains publicly unexplained. There’s another unexplained package of these allegations – a “mediafire” package first posted on Reddit – raised in the Alfa suit that Fusion disclaimed credit for.

At least one person pushing this story was (as far as I know) completely unrelated to the efforts Durham and Alfa have focused on. Given that April Lorenzen used a pseudonym for her efforts, it would have been easy to hijack those efforts. So until April Lorenzen certifies that all the communications posted under the name “Tea Leaves” out there are hers (including the comment attached to a Tutanota email in Krypt3ia’s post), neither should anyone assume she’s responsible for all of them.

Alfa Bank believed that the public notice of the Tea Leaves i2p site was proof that Fusion, and only Fusion, was dealing these allegations. The opposite is the case.

To be sure: that might have mattered if Vladimir Putin’s invasion hadn’t killed the Alfa Bank lawsuit. But Phil’s role in the Krypt3ia post doesn’t much matter to the Sussmann indictment. Sussmann’s alleged lie was on September 19, 2016, 16 days before the communications leading to the Krypt3ia post started. Nothing Phil did on October 8 and thereafter, it seems, could affect that alleged lie.

That said, Durham’s sprawling single-count indictment does include allegations about Sussmann’s outreach to the press that post-dates Phil’s involvement and may rely on it. Most notably, a paragraph describing that Sussmann emailed Lichtblau on October 10 encouraging him to send an opinion piece criticizing the NYT for its Trump coverage mentions that, “At or around that time, and according to public sources, [Lichtblau] was working on an article concerning the [Alfa Bank] allegations, but [Lichtblau’s] editors at [NYT] had not yet authorized publication of the article.” [my emphasis] Krypt3ia’s comment, “the NYT confirmed that they asked the question and shit happened. They are still looking into it” – a comment that indirectly involved Phil – is one of those public sources.

At the time, Phil was pushing a NYT article more aggressively than what Durham describes Sussmann doing, and he played at least some role in the public sources that reported NYT was working on an article.

So Phil’s involvement adds an important detail about how these claims were made public in the weeks leading up to the election, but none of that changes whether or not Sussmann lied to cover up Hillary and/or Rodney Joffe’s role in all this.

Update: I’ve corrected the post to reflect that the original site, hosted in Russia, was a proxy, not a mirror. Thanks to @i2p at geti2p.net for the corrections starting in this exchange.

Texts

The following includes all the Signal texts included in the exchange regarding the Alfa Bank DNS anomalies.

Two comments on these texts: I’m not sure what I meant in the text sent on October 9 at 10:51AM. I suspect I mistyped. I suspect I was trying to explain Betsy and Dick DeVos’ traditional role in the Republican party – money – was less urgent to Trump in October 2016 than some kind of credible Republican policy platform. 

I stand by everything else I said in these texts, though admit my observation about the adversity between UAE and Russia turned out to be hilariously and epically wrong, particularly as it pertained to Prince.

John Durham Keeps Chasing Possible Russian Disinformation

Yesterday, the two sides in the Michael Sussmann case submitted the proposed jury questions they agree on and some they disagree on.

Durham objects to questions about security clearances and educational background (presumably Durham wants to make it harder for Sussmann to get people who understand computers and classification on the jury).

Sussmann objects to questions about April Lorenzen’s company and Georgia Tech.

He also objects to a question that assumes, as fact, that the Hillary campaign and the DNC “promoted” a “collusion narrative.”

I suspect Sussmann’s objections to these questions are about direct contact. For all of Durham’s heaving and hollering, while Sussmann definitely met with Fusion GPS, of the researchers, the indictment against Sussmann only shows direct contact with David Dagon. Everything else goes through Rodney Joffe. Plus, a document FOIAed by the frothy right shows that Manos Antonakakis believes what is portrayed in the indictment is at times misleading and other times false, which I assume he’ll have an opportunity to explain at trial.

As regards the campaign, as I already noted, when Sussmann asked Durham what proof the Special Counsel had that he was coordinating with the campaign, Durham pointed to Marc Elias’ contacts with the campaign and, for the first time (over a month after the indictment), decided to interview a Clinton staffer.

Sussmann will probably just argue that Durham’s plan to invoke these things simply reflects Durham’s obstinate and improper treatment of a single false statement charge as a conspiracy the Special Counsel didn’t have the evidence to charge.

But Durham’s inclusion of it makes me suspect that Durham wants to use an intelligence report that even at the time analysts noted, “The IC does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.” Nevertheless, John Ratcliffe, who has a history of exaggeration for career advancement, declassified, unmasked Hillary’s name, and then shared with Durham.

If Durham does intend to use this, though, it would likely mean Durham would have to share parts of the Roger Stone investigation file with Sussmann. That’s because the report in question ties the purported Clinton plan to Guccifer 2.0.

And as the FBI later discovered, there was significant evidence that Roger Stone had been informed of the Guccifer 2.0 persona before it went public.

That information, along with a bunch of other things revealed about Stone’s activities before this Russian report, suggest the Russian report may actually be an attempt to protect Stone, one that anticipated Stone’s claims in the days after the report that Guccifer 2.0 was not Russian.

Unless Durham finds a way to charge conspiracy in the next two months, Judge Christopher Cooper would do well to prevent Durham from continuing his wild conspiracy theorizing. Because it’s not clear Durham knows where the strings he is pulling actually lead.

John Durham Says Election-Hack Victims Should Wait Until After the Election to Report Tips

Even as Russia assaults a peaceful democracy (which invasion, in a separate filing, Durham calls, “recent world events in Ukraine”), John Durham suggests that a political campaign victimized by Russia should expect to wait until after the election before the FBI opens an investigation into a cybersecurity anomaly potentially implicating her opponent.

Durham even asserts that such a cybersecurity anomaly is not a cybersecurity matter, but instead a political one.

Almost six years after Trump’s request, “Russia are you listening,” was met with a renewed Russian attack on Hillary Clinton, John Durham continues to treat Hillary’s attempts to run a campaign while being attacked as a greater threat than that nation-state attack by Russia.

Durham’s latest contortions come in a response to Micheal Sussmann’s motion to dismiss the indictment.

Sussmann argued that the alleged lie he told (motions to dismiss must accept the alleged facts as true), could not have affected the single decision facing the FBI when he shared information about a DNS anomaly: whether to open an investigation or not.

Following the Supreme Court’s clear instruction in Gaudin, in order to assess the materiality of the false statement that Mr. Sussmann is alleged to have made, this Court must ask what statement he is alleged to have made to the FBI; what decision the FBI was trying to make; and whether the false statement could have influenced that decision. Here, even accepting all the allegations in the Indictment as true—and the evidence would prove otherwise—the only decision the FBI was trying to make was the decision whether or not to commence an investigation into the allegations of suspicious internet data involving the Trump Organization and Russian Bank-1. Ample precedent—and the Special Counsel’s own allegations in this case—make clear that Mr. Sussmann’s purported false statement did not influence, and was not capable of influencing, that decision.

Predictably and reasonably, Durham’s response cited the precedent that leaves it up to juries to determine whether something is material or not.

In any event, the defendant’s arguments on the materiality of his statement are also premature. The Supreme Court in Gaudin held that materiality is an essential element of Section 1001 that must be resolved by a jury.

As I noted back in October, “Prosecutors will argue that materiality is a matter for the jury to decide.”

Prosecutors also noted what I did: a long list of precedents about materiality that Sussmann cited in his motion are all post-trial challenges to materiality, not pretrial motions to dismiss.

The defendant cites to multiple cases where the Supreme Court and Circuit Courts have held that the false statements and misrepresentations at issue were immaterial as a matter of law. See Def. Mot. at 7-10. But critically, all of those cases involved post-conviction appeals or motions to vacate the conviction after the Government presented its case at trial. Accordingly, none of these cases support the defendant’s requested relief here – that is, that the court dismiss the Indictment before trial because it fails to sufficiently allege that the defendant’s false statement is material. What the cases do show is that courts have routinely declined to usurp the jury’s role in making the determination on whether a false statement is material.

For those two reasons, Sussmann’s motion to dismiss is unlikely to succeed, and should instead be viewed as an opening bid to frame his defense and establish issues for appeal.

Those two arguments are all Durham really needed to respond to Sussmann’s motion to dismiss. Instead of leaving it with responsible lawyering, however, Durham instead launches into an illogical attempt to criminalize tip reporting.

Take his attempt to dismiss Rodney Joffe’s real cybersecurity expertise. In the three months since he charged Sussmann, Durham belatedly (at Sussmann’s request) discovered how closely Joffe had worked with the FBI on other investigations. As Sussmann scoffed in an earlier filing, “The notion that the FBI would have been more skeptical of the information had it known of Tech Executive-1’s involvement is, in a word, preposterous.” Now that Durham has discovered the close ties between Joffe and the FBI, he claimed that that history of reliability was itself something the FBI needed to know.

Namely, as the defendant’s motion reveals (Def. Mot. at 18-19, fn. 8), Tech Executive-1 had a history of providing assistance to the FBI on cyber security matters, but decided in this instance to provide politically-charged allegations anonymously through the defendant and a law firm that was then-counsel to the Clinton Campaign. Given Tech Executive-1’s history of assistance to law enforcement, it would be material for the FBI to learn of the defendant’s lawyer-client relationship with Tech Executive-1 so that they could evaluate Tech Executive-1’s motivations. As an initial step, the FBI might have sought to interview Tech Executive-1. And that, in turn, might have revealed further information about Tech Executive-1’s coordination with individuals tied to the Clinton Campaign, his access to vast amounts of sensitive and/or proprietary internet data, and his tasking of cyber researchers working on a pending federal cybersecurity contract.

Durham’s claim that “learning” how much data Joffe had access to (which is something the FBI undoubtedly knew — it is surely the reason why FBI partnered with him, because the volume of data Neustar had made their observations more useful) would make them more skeptical of the DNS tip is nonsensical. In fact, elsewhere (in tracking all the YotaPhone requests in the US over a three year period), Durham treated it as presumptively reliable.

Plus, Durham made no mention here of one of a number of the other things he belatedly learned: that the September 2016 tip Sussmann shared with FBI General Counsel James Baker was not the only one Joffe had shared via Sussmann anonymously. He shared a tip anonymously during this same time period with DOJ IG. Durham has no way of knowing, either, whether those two were the only ones, but his revised theory of materiality depends on an anonymous tip like this one being unique.

Similarly, Durham struggled to explain (including by citing an inapt precedent) why the FBI would need to be told that Sussmann represented Hillary when, in notes of Baker’s retelling of the meeting, Bill Priestap wrote that Sussmann represented the DNC and Clinton Foundation.

As he did with Joffe, Durham tried to flip Sussmann’s expertise, arguing that the former prosecutor’s recognized qualification as a cybersecurity expert, something that would help him assess whether DNS data were anomalous or not, is precisely why the Perkins Coie lawyer needed to disclose he was working for Hillary.

In an effort to downplay the materiality of this false statement, the defendant asserts that the FBI General Counsel was aware that the defendant represented the DNC. See Def. Mot at 18. But the Government expects that evidence at trial will establish that the FBI General Counsel was aware that the defendant represented the DNC on cybersecurity matters arising from the Russian government’s hack of its emails, not that he provided political advice or was participating in the Clinton Campaign’s opposition research efforts. Indeed, the defendant held himself out to the public as an experienced national security and cybersecurity lawyer, not an election lawyer or political consultant. Accordingly, when the defendant disclaimed any client relationships at his meeting with the FBI General Counsel, this served to lull the General Counsel into the mistaken, yet highly material belief that the defendant lacked political motivations for his work.

There are many crazy assumptions built into this statement: that, had Sussmann identified Hillary as his client, it would have required him to reveal her motives as political rather than security-related to the FBI, breaching privilege; that reporting an anomaly potentially involving Trump after Trump had begged Russia to further hack Hillary would not be a sound decision from a cybersecurity standpoint; that researching the context of an anomaly, such as Alfa Bank’s ties to Putin, is not part of cybersecurity. Effectively, Durham has unilaterally decided that pursuing this anomaly was a political act, with no basis in law or fact.

Which is how Durham espoused the claim that the FBI, facing an unprecedented attack by Russia on American elections in 2016, might have delayed investigation of a part of it that might have implicated one of the contestants.

The defendant’s false statement to the FBI General Counsel was plainly material because it misled the General Counsel about, among other things, the critical fact that the defendant was disseminating highly explosive allegations about a then-Presidential candidate on behalf of two specific clients, one of which was the opposing Presidential campaign. The defendant’s efforts to mislead the FBI in this manner during the height of a Presidential election season plainly could have influenced the FBI’s decision-making in any number of ways. The defendant’s core argument to the contrary rests on the flawed premise that the FBI’s only relevant decision was binary in nature, i.e., whether or not to initiate an investigation. But defendant’s assertion in this regard conveniently ignores the factual and practical realities of how the FBI initiates and conducts investigations. For example, the Government expects that evidence at trial will prove that the FBI could have taken any number of steps prior to opening what it terms a “full investigation,” including, but not limited to, conducting an “assessment,” opening a “preliminary investigation,” delaying a decision until after the election, or declining to investigate the matter altogether.

[snip]

Moreover, the Department of Justice and the FBI maintain stringent guidelines on dealing with matters that bear on U.S. elections. Given the temporal proximity to the 2016 U.S. presidential election, the FBI also might have taken any number of different steps in initiating, delaying, or declining the initiation of this matter had it known at the time that the defendant was providing information on behalf of the Clinton Campaign and a technology executive at a private company.

[snip]

And the evidence will show that it would have been all the more material here because the defendant was providing this information on behalf of the Clinton Campaign less than two months prior to a hotly contested U.S. presidential election. [my emphasis]

The first paragraph here is really telling, given Durham’s public complaint that the Crossfire Hurricane team should have opened the investigation as a preliminary investigation, not a full investigation (the investigation into Mike Flynn, specifically, wasn’t opened as a full investigation, but none of the techniques used would have otherwise been unavailable, not least because there was already a full investigation opened on Carter Page). This is an argument Durham may reprise in his report: That it was unreasonable for Hillary Clinton to ask the FBI to inquire into Trump’s campaign after he publicly asked a foreign country for help (even ignoring the tip from Australia).

Durham seems to think Hillary should have had no assistance from law enforcement when her opponent publicly asked Russia to hack her some more if people close to her found more reason to be concerned. He even mocked Sussmann as too powerful to choose to use anonymity.

[W]hile the defendant’s motion seeks to equate the defendant with a “jilted ex-wife [who] would think twice about reporting her ex-husband’s extensive gun-smuggling operation,” this comparison is absurd. Def. Mot. at 24

Far from finding himself in the vulnerable position of an ordinary person whose speech is likely to be chilled, the defendant – a sophisticated and well-connected lawyer – chose to bring politically-charged allegations to the FBI’s chief legal officer at the height of an election season.”

This also betrays pure insanity. The anomaly involving Trump could always have reflected disloyal insiders compromising the candidate, as could the YotaPhones potentially in use in Trump headquarters. In fact, Page did compromise Trump when he went to Russia in December 2016 and tell Russians there that he was representing Trump on matters pertaining to Ukraine, just as Mike Flynn did by selling his access to Trump to Turkey, just as Tom Barrack is accused of doing with the Emirates. The reason why Sussmann was providing this information less than two months before an election is because cybersecurity researchers had gone looking because there was an ongoing multi-faceted cybersecurity attack, one that continued right through the election, one that could have victimized Trump as well as Hillary.

Which brings me to the one point Sussmann made that Durham completely ignored. In his response, Durham’s response uses the word “purported” to describe the DNS allegations from Sussmann five times:

  1. The defendant provided the FBI General Counsel with purported data and “white papers” that allegedly demonstrated a covert communications channel between the Trump Organization and a Russia-based bank
  2. the purported data and white papers
  3. the purported DNS traffic that Tech Executive-1 and others had assembled
  4. the defendant provided data which he claimed reflected purportedly suspicious DNS lookups by these entities of internet protocol (“IP”) addresses affiliated with a Russian mobile phone provider (“Russian Phone Provider-1”)
  5. examine the origins of the purported data

What Durham did not do is ever address this point from Sussmann:

Indeed, the defense is aware of no case in which an individual has provided a tip to the government and has been charged with making any false statement other than providing a false tip. But that is exactly what has happened here.

In the fall of 2016, Michael Sussmann, a prominent national security lawyer, voluntarily met with the Federal Bureau of Investigation (“FBI”) to pass along information that raised national security concerns. He met with the FBI, in other words, to provide a tip. There is no allegation in the Indictment that the tip he provided was false. And there is no allegation that he believed that the tip he provided was false. Rather, Mr. Sussmann has been charged with making a false statement about an entirely ancillary matter—about who his client may have been when he met with the FBI—which is a fact that even the Special Counsel’s own Indictment fails to allege had any effect on the FBI’s decision to open an investigation.

[snip]

Again, nowhere in the Indictment is there an allegation that the information Mr. Sussmann provided was false. Nowhere is there an allegation that Mr. Sussmann knew—or should have known—that the information was false. And nowhere is there an allegation that the FBI would not have opened an investigation absent Mr. Sussmann’s purported false statement.

I could fund an entire Special Counsel investigation if I had $5 for every time in this prosecution Durham has used the word “purported.” For almost six months, his entire prosecution has been premised on this anomaly not being “real,” meaning unexplained traffic that might represent something serious.

And yet he has not charged that (though he seems to have bullied April Lorenzen, perhaps because he needs her to be something other than she was). Instead, he just keeps doing the work for which actual evidence is normally required by repeating the word “purported” over and over.

This motion to dismiss will likely fail, because juries get to decide what is material. But contrary to Durham’s claims, unless and until he can prove that Sussmann, Jofffe, and Lorenzen didn’t believe this was a real anomaly worth investigating given all the other attacks that, Sussmann especially, knew were ongoing, then he really will be prosecuting someone for reporting a valid national security concern.

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

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

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

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

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

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

Durham removed the two passages italicized below.

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

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

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

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

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

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

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

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

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

John Durham and Newly-Sanctioned Alfa Bank’s Filings: “Almost like they were written by the same people”

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

[R]ight now, given the — if the closeness of 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]

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

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

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

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

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

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

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

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

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

Alfa made a number of mistakes — confusing a domain name with a business. Claiming he authored a paper that David Dagon had. Asking him about several emails he hadn’t been sent.

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

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

A: I have to invoke my Fifth Amendment rights.

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

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

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

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

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

I’ve never been interested in politics. I’ve never been involved in politics. I haven’t voted for many, many years. I haven’t donated to any parties or any — or given any kind of benefit to any parties, but I certainly over the last few years have had an interest in the politics of the country that I live in.

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

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

Joffe’s deposition ended at 2:07PM ET on February 11.

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

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

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

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

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

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

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

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

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

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

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

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

Timeline

January 25: Durham asks to extend discovery deadline

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

February 9: Michael Sussmann succeeds in staying Alfa Bank’s effort to get documents from him

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

February 11, 9:30AM: Rodney Joffe deposition

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

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

February 14: Peter Fritsch deposition

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

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

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

February 24: Rodney Joffe’s lawyers file notices of appearance in the Sussmann docket

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

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

March 1: Judge Cooper sets a Friday deadline for the government to respond to Joffe’s motion

March 7: Hearing scheduled to address conflicts memo

Durham Says It’s Not His Fault His Former Boss Called for the Death of His Defendant

John Durham didn’t have much to say after being called out for making baseless accusations that their source Kash Patel lied about, leading the former President to suggest Michael Sussmann should be killed.

They’re not responsible for the death threats, the attorney who filed a notice of appearance in the wake of Friday’s stunt, Brittain Shaw, insists.

If third parties or members of the media have overstated, understated, or otherwise misinterpreted facts contained in the Government’s Motion, that does not in any way undermine the valid reasons for the Government’s inclusion of this information.

She said this even while acknowledging it might be prudent to take measures against death threats in the future.

That said, to the extent the Government’s future filings contain information that legitimately gives rise to privacy issues or other concerns that might overcome the presumption of public access to judicial documents – such as the disclosure of witness identities, the safety of individuals, or ongoing law enforcement or national security concerns – the Government will make such filings under seal. United States v. Hubbard, 650 F. 2d 293, 317-323 (D.C. Cir. 1980) (setting forth factors for considering whether the presumption of public access is overridden, including (1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.) The Government respectfully submits that no such issues or concerns are implicated here. [my emphasis]

The former President implied the defendant and a witness should be killed. But it’s not Durham’s fault and so he doesn’t have to deal with the fact that it happened!!

This is factually specious. Kash Patel, who was among the first to make egregiously false claims, is not a “third party.” He is the originator of this inquiry, and he knew well his statements to be false. Donald Trump, who suggested Sussmann and others should be killed, is not a “third party.” He was Durham’s boss and his demands for prosecutions are what led to Durham being appointed Special Counsel in the first place.

Plus, Durham’s team have already made the identities of some grand jury witnesses public in discovery filings.

The claim that the architects of this mob are neutral “third parties” is all the more pathetic given the excuse Shaw provides for including the false insinuation that Rodney Joffe spied on Trump’s White House rather than tried to keep the White House safe from hackers at the time it happened to be occupied by Barack Obama.

The reason they mentioned the White House, you see (Shaw claims), is because of one of the conflicts they raised.

The Government included two paragraphs of limited additional factual detail in its Motion for valid and straightforward reasons. First, those paragraphs reflect conduct that is intertwined with, and part of, events that are central to proving the defendant’s alleged criminal conduct. Second, the Government included these paragraphs to apprise the Court of the factual basis for one of the potential conflicts described in the Government’s Motion, namely, that a member of the defense team was working for the Executive Office of the President of the United States (“EOP”) during relevant events that involved the EOP. [my emphasis]

Shaw here argues that events in February 2017 are “intertwined” with an alleged crime that took place five months earlier.

She also suggests that the reason they raised the White House is because one of Sussmann’s team members worked there (Charlie Savage has now IDed the lawyer as Michael Bosworth).

I mean, so did Kash Patel, a central player in the false claims that led to the former President calling for death.

Here’s what the actual conflict memo said about that purported conflict.

Based on its review of documents in its investigation and other information, the Special Counsel’s Office also has learned that one of the members of the defendant’s current defense team (“Defense Team Member-1”) previously worked as Special Counsel to the then-FBI Director from 2013 to 2014. In connection with that work, Defense Team Member-1 developed professional and/or personal relationships with several individuals who later were involved with and/or knowledgeable of the FBI’s investigation of the Russian Bank-1 allegations. For example, Defense Team Member-1 appears to have developed a professional relationship with the former FBI General Counsel to whom the defendant made his alleged false statement and who will likely be a central witness at trial.4 While it is unlikely that these past interactions and activities will give rise to an actual conflict of interest, the Government respectfully requests in an abundance of caution that the Court inquire with the defense concerning whether Defense Team Member-1’s relationships with persons and entities who might be witnesses in this case could give rise to a potential conflict or appearance issue and, if so, whether the defendant waives any such conflict.

4 Following his employment at the FBI, Defense Team Member-1 worked from 2014 to early 2017 as an attorney in the EOP which, as noted above, was involved in certain factual issues that the Government expects will be relevant at trial and any sentencing proceedings. Latham has represented to the Government that while employed at the EOP, Defense Team Member-1 had no role in the aforementioned events or arrangements involving Tech Executive-1, Internet Company1, and/or allegations involving the purported use of Russian-made phones. The Government similarly has not seen evidence to suggest that Defense Team Member-1 had any role in, or direct knowledge of, the Russian Bank-1 allegations or the FBI’s ensuing investigation. [my emphasis]

It’s the tie to Jim Comey and through him to James Baker, not the subsequent job at the White House, that Durham’s team presented as a potential conflict — and even then, Durham’s team admits this is not likely a conflict. By this standard, several members of the prosecutorial team, not to mention the guy from whom this allegation came from, Kash Patel, have a conflict. John Durham was hired by Donald Trump; that’s a more serious conflict than anything his team spins up as one.

The White House will not be called to the stand at Sussmann’s trial. None of this is actually about the White House. As Andrew DeFilippis noted in his filing making wild claims of conflict, the White House job was not one of those conflicts. Indeed, this is yet another marker of Durham’s dishonesty. This team member, as described, was a victim of Rodney Joffe’s purportedly vicious efforts to make sure the Obama White House was not hacked. The team member only has an adversarial relationship if one believes that protecting against hacks is an adversarial stance. But that’s not how they describe the purported conflict which even they admit is not one.

Which is a pretty big hint their understanding of conflicts here is whacked beyond all reason.

Even in a terse four page motion (which I guess is one way she’s an improvement over DeFilippis), Shaw still had room for bullshit.

Having given a transparently bogus excuse for raising the White House, she then says that raising it in a conflict memo is cool because Durham plans to later raise these issues in a motion in limine (pre-trial motions about what can and cannot be presented during the trial).

In light of the above, there is no basis to strike any portion of the Government’s Motion. Indeed, the Government intends to file motions in limine in which it will further discuss these and other pertinent facts to explain why they constitute relevant and admissible evidence at trial. Pursuant to caselaw and common practice in this and other districts, the filing of documents containing reference to such evidence on the public docket is appropriate and proper, even in highprofile cases where the potential exists that such facts could garner media attention. See, e.g., United States v. Stone, 19 Cr. 18 (D.D.C. October 21, 2019) (ABJ), Minute Order (addressing the Government’s publicly-filed motion in limine seeking to admit video clip from the movie “Godfather II” that defendant sent to an associate and permitting admission of a transcript of the video); United States v. Craig, 19 Cr. 125 (D.D.C. July 10, 2019) (ABJ), Minute Order (addressing Government’s publicly-filed Rule 404(b) motion to offer evidence of defendant’s efforts to assist Paul Manafort’s relative in obtaining employment); United States v. Martoma, S1 12 Cr. 973, 2014 WL 164181 (S.D.N.Y. January 9, 2014) (denying defendant’s motion for sealing and courtroom closure relating to motions in limine concerning evidence of defendant’s expulsion from law school and forgery of law school transcript);1 see also Johnson v. Greater SE Cmty. Hosp. Corp., 951 F. 2d 1268, 1277 (D.C. Cir. 1991) (holding that there is a “strong presumption in favor of public access to judicial proceedings”). Moreover, any potential prejudice or jury taint arising from such media attention can effectively and appropriately be addressed through the voir dire process during jury selection.

1 The publicly-filed evidentiary motions and judicial rulings in each of the above-cited cases received significant media attention. See, e.g., Prosecutors Can’t Show Godfather II Clip at Roger Stone Trial, Judge Rules, CNN, October 21, 2019 (https://www.cnn.com/2019/10/21/politics/godfather-ii-roger-stone/index.html; Greg Craig Pushed to Hire Manfort’s Relative at Skadden, Prosecutors Say, POLITICO, May 10, 2019 (https://www.politico.com/story/2019/05/10/greg-craig-hire-manaforts-relative-1317600); SAC’s Martoma Tried to Cover Up Fraud at Harvard, Documents Show, REUTERS, January 9, 2014 (https://www.reuters.com/article/us-sac-martoma-harvard/sacs-martoma-tried-to-cover-up-fraudat-harvard-documents-show-idUSBREA081C720140109).

Roger Stone Roger Stone Roger Stone and Mueller, she throws in for good measure.

This is a fairly bald admission that the time to raise these issues, pretending they were relevant, would be the later 404(b) fight (over whether evidence of related conduct can be admitted at trial to help prove the case), not now, on a totally separate issue. That this might be a relevant issue later (which is itself admission that these topics are not direct evidence about Sussmann’s alleged lie and must first demonstrate relevance to even be admitted at trial) is not an excuse to use them in untimely and off-purpose fashion.

And yet that’s Durham’s excuse for saying a bunch of things that predictably led to calls for death.

According to John Durham’s logic of conflicts, he is the one with an unwaivable conflict. The guy who hired him to this job is the same guy suggesting, based off Durham’s filing, that the guy he is prosecuting should be executed.

Updated for clarity.

Update: Corrected Bosworth’s last name.

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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