Clinton campaign lawyer Sussmann asks court to 'strike' Durham's 'factual background' from latest filing

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Attorneys for Michael Sussmann, the former Clinton campaign lawyer charged as part of Special Counsel John Durham’s investigation into the origins of the Trump-Russia probe, demanded that the court "strike" the "factual background" section of Durham’s latest filing, arguing it will "taint the jury pool."

Durham filed a motion on Feb. 11 focused on potential conflicts of interest related to the representation of Sussmann, who has been charged with making a false statement to a federal agent. Sussmann has pleaded not guilty.

"Unfortunately, the Special Counsel has done more than simply file a document identifying potential conflicts of interest," Sussmann’s attorneys wrote. "Rather, the Special Counsel has again made 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."

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Sussmann’s attorneys added: "Sadly, the Special Counsel seems to be succeeding in his effort to instigate unfair and prejudicial media coverage of Mr. Sussmann’s case."

Photo of John Durham and Michael Sussmann.  Sussman pic:  Perkins Coie (Perkins Coie)

Sussmann’s legal team called for the court to "strike the Factual Background portion of the Special Counsel’s motion pursuant to the Court’s inherent power to ‘fashion an appropriate sanction for conduct which abuses the judicial process.’"

Durham’s indictment against Sussmann, says he told then-FBI General Counsel James Baker in September 2016, less than two months before the 2016 presidential election, that he was not doing work "for any client" when he requested and held a meeting in which he presented "purported data and 'white papers' that allegedly demonstrated a covert communications channel" between the Trump Organization and Alfa Bank, which has ties to the Kremlin.

But Durham’s Feb. 11 filing alleged that lawyers from Hillary Clinton's presidential campaign in 2016 had paid to infiltrate servers belonging to Trump Tower and later the White House, in order to establish an "inference" and "narrative" to bring to federal government agencies linking Donald Trump to Russia.

In the section of Durham's filing titled "Factual Background," the special counsel alleged that Sussmann "had assembled and conveyed the allegations to the FBI on behalf of at least two specific clients, including a technology executive (Tech Executive 1) at a U.S.-based internet company (Internet Company 1) and the Clinton campaign."

Durham’s filing also said Sussmann’s "billing records reflect" that he "repeatedly billed the Clinton Campaign for his work on the Russian Bank-1 allegations."

The filing revealed that Sussmann and the Tech Executive had met and communicated with another law partner, who was serving as General Counsel to the Clinton campaign. Sources told Fox News that lawyer is Marc Elias, who worked at the law firm Perkins Coie. 

Hillary Clinton  (MSNBC)

Elias’ law firm, Perkins Coie, is the firm that the Democratic National Committee and the Clinton campaign funded the anti-Trump dossier through. The unverified dossier was authored by ex-British Intelligence agent Christopher Steele and commissioned by opposition research firm Fusion GPS.

Durham’s Feb. 11 filing states that in July 2016, the tech executive worked with Sussmann, 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."

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"In connection with these efforts, Tech Executive-1 exploited his access to non-public and/or proprietary Internet data," the filing states. "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," Durham states. "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."

Durham also writes that during Sussmann's trial, the government will 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)."

Trump Tower on Fifth Avenue in Manhattan. 

Durham states that the internet company that Tech Executive-1 worked for "had come to access and maintain dedicated servers" for the Executive Office of the President 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," Durham states.

The filing also reveals that Sussmann provided "an updated set of allegations" including the Russian bank data, and additional allegations relating to Trump "to a second agency of the U.S. government" in 2017.

Durham says the 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 Sussmann's meeting with the second U.S. government agency, Durham says he "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," and claimed that the lookups "demonstrated Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House and other locations."

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"The Special Counsel's Office has identified no support for these allegations," Durham wrote, adding that the "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-Prover 1 IP addresses that originated with U.S.-based IP addresses," Durham wrote. "Fewer than 1,000 of these lookups originated with IP addresses affiliated with Trump Tower."

John Durham

Durham added that data collected by Tech Executive-1 also found that lookups began as early as 2014, during the Obama administration and years before Trump took office, which he said, is "another fact which the allegations omitted."

"In his meeting with Agency-2 employees, the defendant also made a substantially similar false statement as he made to the FBI General Counsel," Durham wrote. "In particular, the defendant asserted that he was not representing a particular client in conveying the above allegations."

"In truth and in fact, the defendant was representing Tech Executive-1--a fact the defendant subsequently acknowledged under oath in December 2017 testimony before Congress, without identifying the client by name," Durham wrote.

Meanwhile, the "Tech Executive-1" has been identified as Rodney Joffe. Joffe has not been charged with any crime thus far.

A spokesperson for Joffe late Monday described him as "an apolitical internet security expert with decades of service to the U.S. Government who has never worked for a political party, and who legally provided access to DNS data obtained from a private client that separately was providing DNS services to the Executive Office of the President (EOP)."

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"Under the terms of the contract, the data could be accessed to identify and analyze any security breaches or threats," Joffe’s spokesperson said. "As a result of the hacks of EOP and DNC servers in 2015 and 2016, respectively, there were serious and legitimate national security concerns about Russian attempts to infiltrate the 2016 election." 

"Upon identifying DNS queries from Russian-made Yota phones in proximity to the Trump campaign and the EOP, respected cyber-security researchers were deeply concerned about the anomalies they found in the data and prepared a report of their findings, which was subsequently shared with the CIA," Joffe’s spokesperson added.

At this point, Durham has indicted three people as part of his investigation: Sussmann in September 2021, Igor Danchenko on Nov. 4, 2021 and Kevin Clinesmith in August 2020.

Danchenko was charged with making a false statement and is accused of lying to the FBI about the source of information that he provided to Christopher Steele for the anti-Trump dossier.

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Kevin Clinesmith was also charged with making a false statement. Clinesmith had been referred for potential prosecution by the Justice Department's inspector general's office, which conducted its own review of the Russia investigation.

Specifically, the inspector general accused Clinesmith, though not by name, of altering an email about Page to say that he was "not a source" for another government agency. Page has said he was a source for the CIA. The DOJ relied on that assertion as it submitted a third and final renewal application in 2017 to eavesdrop on Trump campaign aide Carter Page under the Foreign Intelligence Surveillance Act (FISA).