Special counsel John Durham is contesting indicted Democratic lawyer Michael Sussmann’s call for the Washington, D.C., federal court to strike explosive allegations regarding data mining at Trump properties and the White House that the prosecutor says was used to weave a phony collusion narrative between former President Donald Trump and Russia.
A filing from Durham on Thursday argued that his reasons for making public findings asserting that a tech executive, with whom Sussmann was affiliated, was working to dig up dirt on Trump were “valid” and that any media misinterpretations do not “undermine” the facts.
Sussmann, a Democratic cybersecurity lawyer, was indicted last year for allegedly concealing his clients, including Hillary Clinton’s 2016 presidential campaign, from the FBI when he pushed since-debunked claims of a secret backchannel between the Trump Organization and Russia’s Alfa Bank. Durham revealed last week that he has evidence that Sussmann’s other client, known to be former Neustar executive Rodney Joffe, “exploited” domain name system internet traffic at Trump Tower, Trump’s Central Park West apartment building, and the Executive Office of the President.
In seeking to convince a federal judge to throw out the revelations from the special counsel, Sussmann’s legal team argued this week that Durham’s Friday filing included false and irrelevant allegations “plainly intended to politicize this case, inflame media coverage, and taint the jury pool.” Durham flatly retorted Thursday, “That is simply not true.”
“This court should deny the defendant’s motion,” Durham said Thursday, adding, “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. … 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.”
The filing last Friday by Durham, which Trump and his allies have heralded as vindication for their spying suspicions, was a motion related to potential conflicts of interest within the Sussmann defense team. Sussmann’s team filed a motion Monday to strike those allegations from the federal court record, saying Durham’s motion was overbroad and irrelevant.
The back and forth between parties comes as Sussmann is also trying to convince the judge to toss the case.
Durham said in his filing last week that “Internet Company-1″ accessed “dedicated servers for the EOP as part of a sensitive arrangement whereby it provided DNS resolution services to the EOP” and that Joffe and his associates exploited this arrangement by mining the traffic and other data to gather dirt on Trump. The special counsel said Joffe “enlisted the assistance of researchers at a U.S.-based university,” likely Georgia Tech, “who were receiving and analyzing large amounts of Internet data in connection with a pending federal government cybersecurity research contract” — likely from the Defense Advanced Research Projects Agency.
The special counsel also alleged Sussmann told a U.S. government agency, widely believed to be the CIA, about the phony Russian bank connection in a February 2017 meeting and said he knew about it due to internet traffic to which Joffe had access.
SUSSMANN WANTS JUDGE TO DISMISS DURHAM INDICTMENT
Sussmann’s lawyers lamented Monday that Durham “provocatively — and misleadingly — describes for the first time Domain Name System traffic potentially associated with former President Donald Trump, including data at the Executive Office of the President, that was allegedly presented to Agency-2 in February 2017.”
The defense team added, “Although the Special Counsel implies that in Mr. Sussmann’s February 9, 2017 meeting, he provided Agency-2 with EOP data from after Mr. Trump took office, the Special Counsel is well aware that the data provided to Agency-2 pertained only to the period of time before Mr. Trump took office.”
Durham pushed back Thursday.
“The government included two paragraphs of limited additional factual detail in its motion for valid and straightforward reasons,” Durham said. “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 during relevant events that involved the EOP.”
Lawyers for David Dagon, a Georgia Tech data scientist who allegedly worked with Joffe, told the New York Times that “cybersecurity researchers were investigating malware in the White House, not spying on the Trump campaign, and to our knowledge, all of the data they used was nonprivate DNS data from before Trump took office.”
A spokesperson for Joffe told NBC News that he “legally provided access to DNS data obtained from a private client that separately was providing DNS services to the Executive Office of the President.”
But Durham’s Friday filing pointed to the 2021 indictment of Sussmann, alleging that Joffe “exploited his access to non-public and/or proprietary internet data” and tasked researchers to mine internet data to establish “an inference” and “narrative” tying then-candidate Trump to Russia. Durham said Joffe indicated he was doing this to please certain Clinton campaign “VIPs.”
The special counsel previously said Sussmann claimed to the CIA in 2017 that data he had access to “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.” Durham emphasized that he found “no support for these allegations” and that the “more complete data” cast doubt on the Sussmann claims.
The special counsel’s team has charged Sussmann with lying to the FBI when pushing the Alfa Bank claims. Sussmann allegedly told FBI General Counsel James Baker in September 2016 that he was not working for any particular client despite doing the bidding of Clinton’s campaign, as well as working on behalf of Joffe. Sussmann denies wrongdoing and has pleaded not guilty.
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Michael Horowitz, the inspector general of the Justice Department, said in December 2019 that the FBI “concluded by early February 2017 that there were no such links” between Alfa Bank and the Trump Organization.
“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,” Durham said Thursday. “The government respectfully submits that no such issues or concerns are implicated here.”
Sussmann’s lawyers also filed a motion Thursday calling for the court to dismiss the charges. Durham has yet to respond to that filing.
