Durham says CIA found data alleging Trump-Russia connection not 'technically plausible,' was 'user created'

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What John Durham Wants to Know

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Special Counsel John Durham asserted in a court filing Friday that the CIA concluded data from Clinton campaign lawyer Michael Sussmann alleging coordination between Donald Trump and Russia was "not technically plausible" and was "user created."

In the filing, Durham responded to objections from Sussmann’s defense regarding what evidence could be admissible at Sussmann's trial, which is scheduled to begin next month. Sussmann is accused of lying to the FBI by saying he was not attending a meeting on behalf of a particular client when he was actually presenting the information on behalf of the HIllary Clinton campaign and a technology executive with whom he worked.

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Durham in February first revealed that the government would establish during trial that among the data "exploited" was domain name system (DNS) internet traffic pertaining to "a particular healthcare provider, Trump Tower, Donald Trump's Central Park West apartment building, and the Executive Office of the President of the United States (EOP)."

In February, Durham said data was exploited "by mining the EOP's DNS traffic and other data for the purpose of gathering derogatory information about Donald Trump," adding the data was used to establish "an inference" and "narrative" tying Trump to Russia.

But Sussmann is moving to preclude evidence concerning the "gathering" of that "DNS data" by "Tech Executive 1," who has been identified as Rodney Joffe, and his associates.

In Friday's filing, Durham argued that the gathering of the data is a "necessary factual backdrop to the charged conduct."

Durham's original indictment alleges Sussmann told then-FBI General Counsel James Baker in September 2016 — less than two months before the 2016 presidential election — he was not doing work "for any client" when he requested and held a meeting where 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.

The indictment alleges that Sussmann lied in the meeting, "falsely stating to the general counsel that he was not providing the allegations to the FBI on behalf of any client."

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Sussmann has pleaded not guilty and has sought to dismiss the case. The federal judge presiding over the case denied that request this week. 

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Durham also alleges that Sussmann in February 2017 provided an "updated set of allegations," including the Alfa Bank claims, and additional allegations related to Trump to a second U.S. government agency, which Fox News has confirmed was the CIA.

In his filing Friday, Durham says the government expects to "adduce evidence at trial" that will reflect that the FBI and the CIA "concluded that the Russian Bank 1 allegations were untrue and unsupported.

"For example, while the FBI did not reach an ultimate conclusion regarding the data’s accuracy or whether it might have been in whole or in part genuine, spoofed, altered, or fabricated, Agency 2 concluded in early 2017 that the Russian Bank 1 data and Russian Phone Provider 1 data was not ‘technically plausible,’ did not ‘withstand technical scrutiny,’ ‘contained gaps,’ ‘conflicted with [itself],’ and was ‘user created and not machine/tool generated," Durham wrote.

However, Durham states that "the Special Counsel’s Office has not reached a definitive conclusion in this regard."

But Durham argued that "separate and apart from whether the data was actually unreliable or provided a motive" for Sussmann to lie, evidence concerning the steps the FBI and CIA took to "investigate these matters is critical to establishing materiality."

Durham said that information will "enable the jury to evaluate those steps, which, in turn, will inform their conclusions about whether the defendant’s alleged false statement was material and could tend to influence or impair government functions." 

John Durham and Michael Sussmann.     (Sussman photo from Perkins Coie)

Meanwhile, Durham outlines the connection between Sussmann and the now-infamous and discredited anti-Trump dossier, which contained allegations of purported coordination between Trump and the Russian government.

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

In Durham’s filing Friday, he revealed that Sussmann met in the summer of 2016 with Steele at the Perkins Coie offices, where he told Steele about the Alfa Bank allegations.

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Durham states that after their meeting, personnel from the "U.S. Investigative Firm," which Fox News previously reported is Fusion GPS, tasked Steele to "research and produce intelligence reports" about Alfa Bank, "which he did." 

Durham, in his filing, states that Sussmann "represented and worked for the Clinton campaign in connection with its broader opposition research efforts" and "took steps to integrate" the Alfa Bank allegations "into those opposition research efforts."

Durham argued that the evidence is "highly probative" because it establishes that Sussmann "represented and worked for the Clinton campaign with its broader opposition research efforts."

Christopher Steele, a former British spy who wrote a 2016 dossier about alleged links between Donald Trump and Vladimir Putin, arrives at the High Court in London for a hearing in the libel case brought against him by Russian businessman Aleksej Gubarev.   (Aaron Chown/PA Images via Getty Images)

Durham also states the evidence establishes that Sussmann "carried out his September 19, 2016, meeting with the FBI in order to, among other things, further the interests of the Clinton campaign with assistance from" Fusion GPS. 

In the filing, Durham also points to notes from a former FBI assistant director that state, among other things, that "the dossier’s author was hired" by Fusion GPS to "dig up dirt on Trump for an unnamed U.S. client."

"The fact that FBI headquarters received on the same date both sets of information involving the same political campaign (Clinton campaign), the same law firm [Perkins Coie] and the same investigative firm [Fusion GPS] makes Steele’s involvement in these matters relevant," Durham wrote.

Meanwhile, Sussmann’s defense has made a motion to give immunity to Tech Executive 1, Rodney Joffe, who has not been charged with a crime.

In Durham’s filing, however, he reveals that Joffe is "a subject" of the investigation and has been since prior to Sussmann’s indictment in 2021. Durham says this has been communicated with Joffe’s counsel, and that he still remains a subject, even one month short of trial.

Durham said that the decision not to grant Joffe immunity was "entirely reasonable and consistent with the Department of Justice’s practices," given that he "played a critical leadership role in assembling and submitting the allegations at issue, and therefore would likely carry greater criminal exposure and potential culpability in the event the government’s investigation were to reveal or confirm the commission of crimes other than the offense currently charged."

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Durham, though, revealed that the only witness for Sussmann’s trial "immunized by the government" was "Researcher 2," whose identity is unknown. That individual’s immunity began in July 2021, over a month before Sussmann’s indictment.

Durham said the government immunized "Researcher 2" because "at least five other witnesses who conducted work relating to the Russian Bank 1 allegations invoked their right against self-incrimination." 

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"The government therefore pursued Researcher 2’s immunity in order to uncover otherwise unavailable facts underlying the opposition research project that Tech Executive 1 and others carried out in advance of the defendant’s meeting with the FBI," Durham states.

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In the filing, though, Durham also reveals that the government "intends to seek immunity at trial for an individual who was employed at the U.S. investigative firm," Fusion GPS.

"But unlike Tech Executive 1, that individual is considered a ‘witness’ and not a ‘subject’ of the government’s investigation based on currently known facts," Durham states.

Meanwhile, Durham says the government, during trial, plans to offer redacted, non-privileged documents containing communications between Sussmann and Joffe and redacted billing records reflecting Sussmann’s work "on behalf of the Clinton campaign" and Joffe.

Durham says prosecutors also plan to offer communications between Sussmann, Joffe and "Campaign Lawyer 1," who sources tell Fox News is Perkins Coie partner and Clinton lawyer Marc Elias, as well as employees of Fusion GPS.

Sussmann’s trial is scheduled to begin May 16.

Durham, since 2019, has been investigating the origins of the FBI’s original Russia probe, or Crossfire Hurricane, which began in July 2016 through the appointment of Special Counsel Robert Mueller in May 2017. That was shortly after Mueller completed his years-long investigation into whether Trump's campaign colluded or coordinated with the Russians to influence the 2016 presidential election.

Mueller's investigation found no evidence of illegal or criminal coordination between Trump or the Trump campaign and Russia in 2016.  

Durham has indicted three people as part of his investigation: Sussmann in September 2021, Igor Danchenko in November 2021 and Kevin Clinesmith in August 2020.

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

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 Trump campaign aide Carter 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 Page under the Foreign Intelligence Surveillance Act (FISA).

The Associated Press contributed to this report.