John Durham's Desperate False Charges

Thanks for confirming my reporting, but I'm still not impressed

On the eve of the Presidential election, Nov 7th 2016, I broke the story in Heat Street, the news site I ran for Dow Jones, that the FBI was investigating the Trump campaign’s links to Russia, and had, in Ocotober 2016, obtained a FISA warrant to examine the packet data between the Alfa-Bank server and the Trump org server.

My exclusive was confirmed subsequently by the Guardian, the BBC and McClatchy DC. Previously, the New York Times had erroneously published a story minimizing the FBI’s ongoing investigation of the server communications, to wrongly frame it as a dismissal: “Investigating Donald Trump, FBI Sees No Clear Link to Russia”.

Both the New York Times and the Washington Post would later report, and then retract, that the first FISA warrants obtained on the Trump campaign had come in the summer; they had not; they came in October (as I reported).

Yesterday, an unlikely US source confirmed most of my reporting. (Snarky outlets in the US had previously noted that, although major news organizations, the BBC and the Guardian are, like me, British.) John Durham’s ludicrous indictment of Michael Sussman acknowledges that after a meeting held on September 19th at FBI offices with James Baker and Sussman, that the FBI was indeed investigating the Trump and Alfa Servers, as I reported, and were looking for evidence of collusion and communications between the Trump campaign in a backchannel to Russia.

Furthermore, the Durham indictment confirms granular details of my story. I reported that it was the FBI’s counterintelligence arm that was investigating the Russian server, and Durham’s indictment confirms this. I wrote:

the FBI’s counter-intelligence arm, sources say, re-drew an earlier FISA court request around possible financial and banking offenses related to the server.

The indictment specifies that this is true. It says very specifically that following the Sussman-Baker meeting that Baker went to the Assistant Director of the Counterintelligence Division of the FBI. That’s important and not only because I broke the news - my exclusive pointed to a counterintel and not a criminal division investigation.

Immediately after the aforementioned September 19, 2016 meeting, the FBI General Counsel spoke with the Assistant Director of the FBI’s Counterintelligence Division

There will be much more on this tomorrow (for subscribers) - but let me just note in passing that my reporting which is that two earlier requests for FISAs based on communications with Russia - one on Carter Page - were made and denied in the summer, and the request for the FISA warrant on the two bank servers was NOT, as Durham says, for “evidence of a secret communications channel with a Russian bank”. My reporting was that the FBI, in October, re-drew that FISA warrant request around financial and banking offenses.

Got that? I didn’t report a “backchannel.” I reported that the FBI was looking at financial and banking offenses and narrowed their request to that, in order to get the FISA warrant approved.

This is very well sustained in the indictment, too: the allegations that were reported by Sussman to Baker and passed - as I reported - to the counterintelligence division were clearly about possible financial and banking offenses.

On or about August 20, 2016, Originator-1 emailed Tech Executive-1, Researcher-1 and Researcher-2, stating, among other things, that “even if we found what [Tech Executive 1] asks us to find in DNS, we don’t see the money flow, and we don’t see the content of some message saying ‘send the money here’”.

So, thank you for that John Durham. Not that I had the least doubt in my own reporting, but it certainly is nice to have it confirmed by an actual DOJ indictment.

Now let’s examine the actual indictment. For what Durham asserts in his nonsense-filled screed of an indictment about the Alfa and Trump servers themselves, and about cybersecurity researchers and the mysterious Tech-Executive-1 - while I have no sourcing, it would not surprise me in the least were he not a Democrat at all - I will write a separate article. For this one, as well as acknowledging that Durham confirms my Alfa Bank - Trump campaign investigation exclusive, I do just want to take a quick peek at the bias and prosecutorial abuse that is displayed in here.

Essentially, Durham charges Sussman with making a false statement to the FBI that, when he handed over the opposition research he had performed on Alfa-Trump to Baker, he was ‘not representing a client’ when in fact he was representing the Clinton Campaign and Tech-Exec-1. The reason that this is bad - because Durham has to establish a lie was material, to make it a crime - according to the indictment, is that:

Got that? If only James Baker had known who Michael Sussman was working for, he might have delved more deeply into his motivations!

The allegation is just ludicrous on its face. Rather like the MAGA trolls who screeched that Steele was biased because his client on the Dossier switched from Jeb Bush to the Clinton campaign, here’s John Durham desperately attempting to prosecute a famous Democratic lawyer in Hillary Clinton’s campaign law firm, who was known to be such at all times by James Baker, for concealing that he was there on behalf of the Clinton campaign and/or the Tech Executive (the indictment is muddy on this point, and that is, I suspect, because the Tech Exec may well have been a Republican, ruining the narrative). Indeed, Durham’s own document admits that since April 2016, in his capacity as counsel to the DNC, Sussman had met with the FBI multiple times over the Russian hack of its servers and was advising Clinton on cybersecurity.

Therefore, the allegation falls immediately, and there is only one count, one charge. Durham notably doesn’t charge Sussman with lying about the servers. Because he can’t. He only charges him with saying he wasn’t there for a client, when in fact he was.

Sussman disputes it on the grounds that Baker remembered it wrong and he did say he was there for a client, Tech Executive 1, and that anyway it wouldn't be material, on the grounds I’ve just outlined - the FBI was absolutely aware that Sussman worked for the Clinton campaign and the DNC. They didn’t think he was Tea Pain. They didn’t think he was a citizen journalist. They knew exactly what he was.

The rest of the indictment is quite simply a whole bunch more of Durham digging his own grave in this respect. He has to admit that Sussman openly testified to Congress that he was indeed representing a client when he went in to see James Baker. He has to admit that the Assistant Director of the Counterintelligence Division recorded what Baker told him as follows: “Not doing this for any client: represents Clinton, DNC, etc.”

The FBI thus clearly knew Sussman’s bias and background when it was investigating Alfa Bank and Trump servers and the Trump campaign. There goes your materiality.

The minor discrepancy of the memories of Baker and Sussman re clients is pretty easily explained when, again exculpating the man he accuses, John Durham has to admit that even after the election was over and Sussman was no longer representing the Clinton campaign in any way he continued to work on the server issue and made a second report to a different US agency in February, 2017. (FINCEN? bet it was, but more on that later). Sussman said to this other agency’s staff he was “not representing a particular client”. Durham tries to call that a lie because Sussman said to an ex-employee of this agency that he was representing a client in Tech-Executive-1, but, of course, the two statements don’t contradict each other. Sussman simply stated, no doubt with perfect truth, that he wasn’t there by order of one specific client. The obvious scenario is that - as Durham describes, making it out to be bad - Sussman had participated in opposition research on Trump with two clients, the Clinton campaign and Tech-Executive-1, found likely criminal activity therein, and handed it over to James Baker with the accurate statement that he was not representing a particular client when this had been discussed with both. It is perfectly probable, and mirrors the discussions Steele and Simpson had over Trump, as Simpson testified to Congress about, that during the opposition research, Sussman, who had seen this with the DNC, thought he was looking at more Russian interference and announced that he would take it to the FBI. Durham’s heavy lifting trying to make that bad or other than public spirited is no less than prosecutorial misconduct. We have to remember that it was Durham, not Sussman, who was so politically biased that a member of his own team quit on him, and then told the press that she was being pressured to try to influence the election for Trump.

So much for Durham confirming my reporting but then piling up nonsensical charges against an obviously patriotic act by a Democratic lawyer. Inadvertently, Durham reveals a lot more than he wants to about the Alfa Bank - Trump server story, and where the investigation of it headed. More on that, for subscribers, tomorrow.

Have your say in the comments!