U.S. Attorney John Durham speaks to reporters on the steps of U.S. District Court in New Haven, Connecticut.Bob Child/AP
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Special counsel John Durham’s investigation of the origins of the Trump-Russia scandal has turned into a conspiracy-theory-generating machine for feverish right-wingers. And his latest filing raises the question of whether that is by design.
A few days ago, Durham, appointed by Trump Attorney General William Barr, filed what normally is a routine and technical motion in a legal proceeding as part of his case against Michael Sussmann, a Democratic lawyer who Durham has indicted for allegedly lying to an FBI official. The filing concerned a possible conflict of interest involving Sussmann’s attorneys. But the motion included several paragraphs of supposed “factual background” that exploded within right-wing media. It led to a Fox News story with a dramatic headline: “Clinton Campaign Paid to ‘Infiltrate” Trump Tower, White House Servers to Link Trump to Russia, Durham Finds.” Other conservative outlets followed suit. The Washington Examiner howled, “Durham says Democrat-allied tech executive spied on Trump’s White House office.”
Donald Trump got into the act. He issued a statement claiming Durham’s latest filing “provides indisputable evidence that my campaign and presidency were spied on by operatives paid by the Hillary Clinton Campaign in an effort to develop a completely fabricated connection to Russia.” He huffed that this was a scandal “far greater in scope and magnitude than Watergate” and (dangerously) noted that in “a stronger period of time in our country, this crime would have been punishable by death.” He demanded “reparations.”
All this hyperbolic harrumphing—call it disinformation—arises from imprecision and perhaps false information in Durham’s filing.
Durham’s case is based on the allegation that during a 2016 meeting with then-FBI general counsel James Baker, Sussmann, who was sharing with the bureau information assembled by cyber-researchers that raised the prospect of an unusual computer link between a Trump-related business and the Kremlin-linked Alfa Bank, lied when he said he wasn’t representing the Clinton campaign related to this matter. (Sussmann denies this charge.) In the conflict-of-interest filing, Durham referenced a meeting that Sussman had on February 9, 2017 with the CIA, in which he presented an “updated set of allegations” that included information compiled by a tech executive named Rodney Joffe and other researchers. Joffe and the others believed they had come across cyber data called “DNS lookups” that indicated suspicious links between both Trump Tower and the White House and a Russian mobile phone provider. Durham claimed that Sussmann told the CIA, as the document characterizes the conversation, “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.” Durham added, “The Special Counsel’s Office has identified no support for these allegations.”
In this recent filing, Durham also suggested that Joffe had been working on behalf of the Clinton campaign without providing specifics about the nature of any such relationship, and that Joffe had “exploited his access to non-public and/or proprietary Internet data” for this research work. Durham alleged that Joffe’s company “had come to access and maintain dedicated servers” for the White House, “as part of a sensitive arrangement whereby it provided DNS resolution services” to the White House and that Joffe and his associates “exploited this arrangement…for the purpose of gathering derogatory information about Donald Trump.”
Putting together all the allegations and suggestions—a tech exec possibly tied to the Clinton campaign “exploiting” data related to the White House and Trump Tower—right-wing journalists reached a dramatic conclusion: The Clintonites hacked Trump at his home (or office) and at 1600 Pennsylvania Avenue and spied on him. But this leap was based on cyber ignorance and possibly misinformation presented by Durham.
Researching DNS lookups is not hacking a server. It is tracking the pattern of connections between servers and computers or smartphones. Much of this information—DNS logs—is not private. The researchers examining the DNS data were not infiltrating anything. Lawyers for Joffe and David Dagon, a Georgia Institute of Technology data scientist who helped develop the research Sussmann shared with the CIA, have challenged Durham’s representations. Dagon’s attorneys note that the DNS logs examined related to the Russian phone service came from the time of Barack Obama’s presidency. That appears credible, given that Sussmann’s meeting with the CIA was only three weeks after Trump had taken office. And they told the New York Times that Dagon and associates were using “nonprivate” DNS data and “were investigating malware in the White House, not spying on the Trump campaign.”
Joffe, too, says that this research was focused on whether Russian malware had infected the White House and the Trump campaign. (Trump’s campaign office was in Trump Tower.) As the New York Times reports,
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.”
On Monday, Sussmann’s lawyer’s filed a response to Durham’s conflict-of-interest motion that insisted the research discussed at the CIA meeting “pertained only to the period of time before Mr. Trump took office, when Barack Obama was President.” This filing also claimed that Durham was “well aware” of this—suggesting that the special counsel had purposefully fudged this particular and critical point. Sussmann’s legal team, in this document, accused Durham of making “a filing in this case that unnecessarily includes prejudicial—and false—allegations that are irrelevant to his Motion and to the charged offense, and are plainly intended to politicize this case, inflame media coverage, and taint the jury pool.”
Sussmann and others who are part of the investigation should not be taken at their word. But it’s clear from Durham’s own filing that there is no evidence that Trump and White House servers were infiltrated. This charge originated with Kash Patel, a onetime aide to Rep. Devin Nunes (R-Calif.) and pro-Trump operative who has long toiled to discredit the Trump-Russia scandal. Discussing the Durham motion, he made an inaccurate claim to Fox that the document showed that Clinton lawyers had tried to “infiltrate” Trump Tower and White House servers. (Patel, who was a top Pentagon aide at the end of the Trump administration, has been subpoenaed by the House select committee investigating the January 6 riot.)
Ultimately, the fault for this phony bombshell rests with Durham. His filing did not specify the exact time period the DNS lookup research covered. It did not include sufficient details of the alleged links between Joffe and the Clinton campaign to provide a clear picture. And a central issue remains a matter of dispute between Durham and Sussman, Joffe, and the researchers: What allegations did Sussmann present to the CIA? Durham maintains that Sussmann and the researchers were falsely claiming that Trump and his crew were using Russian-made wireless phones, as part of an underhanded effort to tar Trump with a nefarious connection to Moscow. The researchers say their concern was Russian security breaches of the Obama White House and the Trump campaign. This seems to be a question that Durham could easily resolve with a piece or two of evidence. If he wanted to.
Prosecutors have much discretion when it comes to telling the stories of their cases. They can stick to the narrow specifics of the allegations. They can elaborate. Through his tenure as special consul, Durham has chosen to use narrow indictments to disseminate information that suggests wider conspiracies. That ought to place a weighty burden on him to be fair and accurate—and to not feed any partisan conspiracy fever. Yet Durham’s latest filing falls short of that standard and fuels the suspicion that he might be more conspirator than investigator.