John Durham Accuses One of His Key Fact Witnesses — Sergei Millian’s Twitter Account — of “Misinterpret[ing] Facts”

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As I documented the other day, John Durham responded to the uproar over his conflicts filing stunt by claiming to have had nothing at all to do with the “third parties” who “overstated, understated, or otherwise misinterpreted facts contained in the Government’s Motion.”

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.

The claim that the uproar was created by “third parties” is so obviously false it raises conflict problems for Durham himself.

Durham falsely claims those pushing lies are “third parties” to his investigation

As I laid out, one of the key perpetrators of the false claims — including the false claims (1) that Hillary paid Rodney Joffe, (2) that Joffe had “infiltrated” the White House, and (3) Joffe had done so when Trump was President — was Kash Patel, the originator of this entire line of inquiry in December 2017, and someone who for years had means to learn that those claims were false.

John Ratcliffe, whom Durham was meeting rather than interviewing Hillary staffers who could substantiate or debunk his accusations that Michael Sussmann was coordinating with the campaign, made these unsubstantiated claims in a TV appearance earlier this week:

  • There was a “Hillary Clinton campaign plan to falsely accuse Donald Trump of collusion with Russia”
  • Rodney Joffe used DNS data “for an unlawful purpose”
  • Sussmann “pitched” information “to the FBI as evidence of Trump-Russia connections that simply weren’t true and that the lawyer, Michael Sussmann, and the tech executive knew not to be true”

Donald Trump, who personally nominated John Durham as US Attorney and whose demands for criminal investigations led to Durham’s appointment as Special Counsel, asserted that his “presidency [was] spied on by operatives paid by the Hillary Clinton campaign in an effort to develop a completely fabricated connection to Russia.”

These are not “third parties.” These are:

  • The originator of the allegations against Sussmann
  • A self-described repeat Durham witness
  • The man who nominated Durham to be US Attorney and, ultimately, was his boss for almost 3 years

But there’s actually another key player in the effort to magnify Durham’s conflicts filing stunt who is even more central to Durham’s work: One of his most important “witnesses,” Sergei Millian’s twitter account.

The pipeline from online conspiracy theorists through former investigators to the former President

Yesterday, Glenn Kessler attempted to trace how the filing became a propaganda tool. The timeline he laid out looks like this (these times are ET):

11:33PM: Filing hits PACER.

12:43AM: Whispers of Dementia screencaps the filing, noting Durham claimed “Sussmann is likely to be in an “adversarial posture” against Perkins Coie.”

9:24AM: emptywheel notes that Durham is criminalizing lying to the FBI about traffic involving Trump Tower, which Trump himself did at the time.

9:25AM: Hans Mahncke links and screencaps the filing and claims,

Rodney Joffe and his buddies at Georgia Tech monitored Trump’s internet traffic *while* he was President of the United States.

9:39AM: Kessler’s gap

9:45AM: emptywheel RTs Mahncke and notes that this is about cybersecurity.

10:25AM: Techno Foggy tweets that,

DNC/Perkins Coie allies – Rodney Joffe, et al. – Joffe et al, “exploited a sensitive US govt arrangement” to gather intel on the “Executive Office of the President of the U.S.” They spied on Trump.

11:11AM: House Judiciary GOP [so a Jim Jordan staffer] RTs Foggy’s tweet, claiming:

We knew they spied. But it was worse than we thought.

11:44AM: Techno Foggy tweets out his Substack with the claim,

Clinton allies used sensitive data from the Office of the President to push false Trump/Russia claims to the CIA

Why did they risked jail to link Trump to Russia?

Maybe because the origin of their fraud was the “Russian hack” of the DNC.

2:27PM: John Ratcliffe responds to House Judiciary tweet with claim, “And now you’re finding out why…,” thereby seemingly endorsing the “spying” claim, and linking the Durham release with his own cooperation with Durham’s inquiry.

3:24PM: Mark Meadows RT’s Foggy’s tweet, claiming,

They didn’t just spy on Donald Trump’s campaign.

They spied on Donald Trump as sitting President of the United States.

It was all even worse than we thought.

5:51PM: Center for Renewing America tweets out Kash Patel statement making numerous false claims.

6:47PM: Trump’s spox tweets out his claims of spying.

This timeline is damning enough: It shows how these false claims went from “sleuths” who spend much of their time spinning Durham’s conspiracy theories, through Techno Foggy (a self-described lawyer who has for years interacted openly with lawyers like Sidney Powell and Billy Barr’s spox Kerri Kupec), to Jim Jordan’s staffer to Ratcliffe to Mark Meadows to Kash Patel to Trump. Every single one of these current and former officials have played a central role in these investigations; none is a “third party.”

Sergei Millian’s twitter account calls it spying

But there’s a very key step in Kessler’s timeline that is missing. At 9:39AM (the time shown here is Irish time) — which I’ve marked above in red — Sergei Millian’s twitter account tweeted, “They were spying on the White House, folks!!.”

This claim was before Techno Foggy made the spying claim. The first person to have made the “spying” claim in this timeline, then, was Sergei Millian’s twitter account.

In fact, the next day, Millian’s twitter account insinuated to have started all this in the first place — that the twitter account “had a direct line into the White House” via which it “told them who was working against them.”

Thanks for identifying this phone call, Sergei, because Igor Danchenko will now have cause to demand details of it in discovery, which will mean, on top of the other unprecedented discovery challenges Durham has taken on in prosecuting Danchenko, he’s now going to have to get Trump records from the Archives. Michael Sussmann, too, likely now has cause to demand those records.

The Millian twitter account RT of Mahncke to belatedly explain the spying claim makes it clear it is an active participant in the “Sleuths Corner” that drives many of the false claims about Durham. In fact the Millian twitter account even advertises it on the twitter account.

Durham says his key witness “misrepresented the facts”

This all amounts to Durham himself discrediting one of his witnesses, perhaps fatally.

As I have noted, when John Durham charged Igor Danchenko with four counts of lying about believing that he had spoken to Sergei Millian back in July 2016, Durham didn’t actually claim to have obtained testimony from the human being named Sergei Millian. Durham did not appear to have required that Millian show up and make statements for which he could be legally held accountable.

Instead, Durham presented an unverified twitter account to the grand jury and based on that, claimed “Chamber President-1 has claimed in public statements and on social media that he never responded to DANCHEKNO’s [sic] emails, and that he and DANCHENKO never met or communicated.”

I refer to this entity as “Sergei Millian’s twitter account” to emphasize that there is not a scrap of evidence in the public record showing that Durham did anything to confirm that Millian, the person, even operates it exclusively. While I have no reason to doubt that he does, from a legal standpoint, Durham is at least publicly relying on nothing but an unverified account, something journalists have been loathe to do for years with Millian.

And this claim attributed to an unverified twitter account is a very important piece of evidence. There’s nothing else in the public record that shows Durham affirmatively ruled out that Danchenko and Millian really did have a phone call.

When I first realized how reckless that was, I though it impossible for Durham to have been that negligent. But we’ve since learned that he accused Sussmann of coordinating with Hillary’s staffers without ever first interviewing a single full-time staffer. So perhaps it is, in fact, true that Durham charged a man based off the unsubstantiated claims of a twitter account.

Danchenko appears to have obtained a pre-trial subpoena on February 8; I have wondered whether it was for the Millian twitter account. If so, the subpoena might well obtain the traffic of what has happened in recent days.

As it stands, though, Durham makes no claim to have anything else.

Just that twitter account.

And that twitter account is part of a pipeline that took Durham’s filing and made egregiously false claims about it. Durham is now on the record claiming that that twitter account “misinterpreted the facts.” But Danchenko will have good reason — and abundant proof, given the details of last week’s little propaganda explosion — to argue that Sergei Millian’s twitter account is willing to make false claims to create a scandal around the Durham investigation.

That shreds the credibility of the only claimed “witness” that the call never happened.

Durham Says It’s Not His Fault His Former Boss Called for the Death of His Defendant

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John Durham didn’t have much to say after being called out for making baseless accusations that their source Kash Patel lied about, leading the former President to suggest Michael Sussmann should be killed.

They’re not responsible for the death threats, the attorney who filed a notice of appearance in the wake of Friday’s stunt, Brittain Shaw, insists.

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.

She said this even while acknowledging it might be prudent to take measures against death threats in the future.

That said, 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. United States v. Hubbard, 650 F. 2d 293, 317-323 (D.C. Cir. 1980) (setting forth factors for considering whether the presumption of public access is overridden, including (1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.) The Government respectfully submits that no such issues or concerns are implicated here. [my emphasis]

The former President implied the defendant and a witness should be killed. But it’s not Durham’s fault and so he doesn’t have to deal with the fact that it happened!!

This is factually specious. Kash Patel, who was among the first to make egregiously false claims, is not a “third party.” He is the originator of this inquiry, and he knew well his statements to be false. Donald Trump, who suggested Sussmann and others should be killed, is not a “third party.” He was Durham’s boss and his demands for prosecutions are what led to Durham being appointed Special Counsel in the first place.

Plus, Durham’s team have already made the identities of some grand jury witnesses public in discovery filings.

The claim that the architects of this mob are neutral “third parties” is all the more pathetic given the excuse Shaw provides for including the false insinuation that Rodney Joffe spied on Trump’s White House rather than tried to keep the White House safe from hackers at the time it happened to be occupied by Barack Obama.

The reason they mentioned the White House, you see (Shaw claims), is because of one of the conflicts they raised.

The Government included two paragraphs of limited additional factual detail in its Motion for valid and straightforward reasons. 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 (“EOP”) during relevant events that involved the EOP. [my emphasis]

Shaw here argues that events in February 2017 are “intertwined” with an alleged crime that took place five months earlier.

She also suggests that the reason they raised the White House is because one of Sussmann’s team members worked there (Charlie Savage has now IDed the lawyer as Michael Bosworth).

I mean, so did Kash Patel, a central player in the false claims that led to the former President calling for death.

Here’s what the actual conflict memo said about that purported conflict.

Based on its review of documents in its investigation and other information, the Special Counsel’s Office also has learned that one of the members of the defendant’s current defense team (“Defense Team Member-1”) previously worked as Special Counsel to the then-FBI Director from 2013 to 2014. In connection with that work, Defense Team Member-1 developed professional and/or personal relationships with several individuals who later were involved with and/or knowledgeable of the FBI’s investigation of the Russian Bank-1 allegations. For example, Defense Team Member-1 appears to have developed a professional relationship with the former FBI General Counsel to whom the defendant made his alleged false statement and who will likely be a central witness at trial.4 While it is unlikely that these past interactions and activities will give rise to an actual conflict of interest, the Government respectfully requests in an abundance of caution that the Court inquire with the defense concerning whether Defense Team Member-1’s relationships with persons and entities who might be witnesses in this case could give rise to a potential conflict or appearance issue and, if so, whether the defendant waives any such conflict.

4 Following his employment at the FBI, Defense Team Member-1 worked from 2014 to early 2017 as an attorney in the EOP which, as noted above, was involved in certain factual issues that the Government expects will be relevant at trial and any sentencing proceedings. Latham has represented to the Government that while employed at the EOP, Defense Team Member-1 had no role in the aforementioned events or arrangements involving Tech Executive-1, Internet Company1, and/or allegations involving the purported use of Russian-made phones. The Government similarly has not seen evidence to suggest that Defense Team Member-1 had any role in, or direct knowledge of, the Russian Bank-1 allegations or the FBI’s ensuing investigation. [my emphasis]

It’s the tie to Jim Comey and through him to James Baker, not the subsequent job at the White House, that Durham’s team presented as a potential conflict — and even then, Durham’s team admits this is not likely a conflict. By this standard, several members of the prosecutorial team, not to mention the guy from whom this allegation came from, Kash Patel, have a conflict. John Durham was hired by Donald Trump; that’s a more serious conflict than anything his team spins up as one.

The White House will not be called to the stand at Sussmann’s trial. None of this is actually about the White House. As Andrew DeFilippis noted in his filing making wild claims of conflict, the White House job was not one of those conflicts. Indeed, this is yet another marker of Durham’s dishonesty. This team member, as described, was a victim of Rodney Joffe’s purportedly vicious efforts to make sure the Obama White House was not hacked. The team member only has an adversarial relationship if one believes that protecting against hacks is an adversarial stance. But that’s not how they describe the purported conflict which even they admit is not one.

Which is a pretty big hint their understanding of conflicts here is whacked beyond all reason.

Even in a terse four page motion (which I guess is one way she’s an improvement over DeFilippis), Shaw still had room for bullshit.

Having given a transparently bogus excuse for raising the White House, she then says that raising it in a conflict memo is cool because Durham plans to later raise these issues in a motion in limine (pre-trial motions about what can and cannot be presented during the trial).

In light of the above, there is no basis to strike any portion of the Government’s Motion. Indeed, the Government intends to file motions in limine in which it will further discuss these and other pertinent facts to explain why they constitute relevant and admissible evidence at trial. Pursuant to caselaw and common practice in this and other districts, the filing of documents containing reference to such evidence on the public docket is appropriate and proper, even in highprofile cases where the potential exists that such facts could garner media attention. See, e.g., United States v. Stone, 19 Cr. 18 (D.D.C. October 21, 2019) (ABJ), Minute Order (addressing the Government’s publicly-filed motion in limine seeking to admit video clip from the movie “Godfather II” that defendant sent to an associate and permitting admission of a transcript of the video); United States v. Craig, 19 Cr. 125 (D.D.C. July 10, 2019) (ABJ), Minute Order (addressing Government’s publicly-filed Rule 404(b) motion to offer evidence of defendant’s efforts to assist Paul Manafort’s relative in obtaining employment); United States v. Martoma, S1 12 Cr. 973, 2014 WL 164181 (S.D.N.Y. January 9, 2014) (denying defendant’s motion for sealing and courtroom closure relating to motions in limine concerning evidence of defendant’s expulsion from law school and forgery of law school transcript);1 see also Johnson v. Greater SE Cmty. Hosp. Corp., 951 F. 2d 1268, 1277 (D.C. Cir. 1991) (holding that there is a “strong presumption in favor of public access to judicial proceedings”). 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.

1 The publicly-filed evidentiary motions and judicial rulings in each of the above-cited cases received significant media attention. See, e.g., Prosecutors Can’t Show Godfather II Clip at Roger Stone Trial, Judge Rules, CNN, October 21, 2019 (https://www.cnn.com/2019/10/21/politics/godfather-ii-roger-stone/index.html; Greg Craig Pushed to Hire Manfort’s Relative at Skadden, Prosecutors Say, POLITICO, May 10, 2019 (https://www.politico.com/story/2019/05/10/greg-craig-hire-manaforts-relative-1317600); SAC’s Martoma Tried to Cover Up Fraud at Harvard, Documents Show, REUTERS, January 9, 2014 (https://www.reuters.com/article/us-sac-martoma-harvard/sacs-martoma-tried-to-cover-up-fraudat-harvard-documents-show-idUSBREA081C720140109).

Roger Stone Roger Stone Roger Stone and Mueller, she throws in for good measure.

This is a fairly bald admission that the time to raise these issues, pretending they were relevant, would be the later 404(b) fight (over whether evidence of related conduct can be admitted at trial to help prove the case), not now, on a totally separate issue. That this might be a relevant issue later (which is itself admission that these topics are not direct evidence about Sussmann’s alleged lie and must first demonstrate relevance to even be admitted at trial) is not an excuse to use them in untimely and off-purpose fashion.

And yet that’s Durham’s excuse for saying a bunch of things that predictably led to calls for death.

According to John Durham’s logic of conflicts, he is the one with an unwaivable conflict. The guy who hired him to this job is the same guy suggesting, based off Durham’s filing, that the guy he is prosecuting should be executed.

Updated for clarity.

Update: Corrected Bosworth’s last name.

The Durham Investigation Has Lasted 50% Longer than the Mueller Investigation

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It seems like just days ago we were celebrating a big milestone in the life of the Durham investigation: the 1,000 day mark.

Time flies when you’re unethically making accusations designed to rile up the frothy base, because Durham hits another major milestone today.

Today makes day 1,011 for Durham. The Mueller investigation lasted 674 days, total. So as of today, John Durham has been investigation for 50% longer than the entire Mueller investigation he was hired to undermine.

I had to highlight the end date for Mueller because it gets lost when compared to the Durham timeline.

In 22 months, Mueller got convictions of Trump’s Coffee Boy, his National Security Advisor, his Campaign Manager and the Campaign Manager’s Deputy, Trump’s personal lawyer, as well as another American and the son-in-law of Alfa Bank Oligarch German Khan. On a referral, a second Konstantin Kilimnik partner, Sam Patten pled guilty. Mueller charged 25 Russian involved in attacks on the country, as well as Kilimnik himself in a conspiracy with Manafort (though not the conspiracy for trading campaign strategy for debt relief). With another eight months, DC’s US Attorney would win Roger Stone’s conviction. None of those things — not the George Papadopoulos guilty plea, not the guilty plea of Khan’s son-in-law Alex Van der Zwaan, and not Michael Cohen’s plea to covering up the communications he had (on Trump’s behalf) with the Kremlin — derives from either the Steele dossier or the Alfa-Bank anomalies.

In half again that time span, John Durham has won the guilty plea of Kevin Clinesmith (whose misconduct DOJ Inspector General Michael Horowitz found), charged Michael Sussmann for lying about coordinating with Hillary staffers he didn’t coordinate with, and charged Igor Danchenko for lies that Durham’s prosecutors created, at least in part, with cut-and-paste failures. All because he’s sure — and he’s going to keep going until he finds proof — that the abundant prosecutions Mueller obtained were the fruit of stuff that Durham is working hard to criminalize and not the criminal conduct that all those Trump flunkies but Stone admitted to.

With the addition of a new financial crimes prosecutor yesterday to the Michael Sussmann prosecution team, I feel like Durham is barely getting started. Why not double the length of time it Mueller took to investigate rather than avoid admitting you can’t substantiate any of your conspiracy theories?

Indict First Interview Later: Durham’s Belated Efforts to Substantiate His Claims that Michael Sussmann Coordinated with Hillary

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Among the accusations John Durham made when he charged Michael Sussmann with a single false statement count in September 2021 was that Sussmann had coordinated with the Hillary Campaign.

SUSSMANN, [Rodney Joffe], and [Perkins Coie] had coordinated, and were continuing to coordinate, with representatives and agents of the Clinton Campaign with regard to the data and written materials that SUSSMANN gave to the FBI and the media.

Coordinating with a client is not a crime. Working with a client to share suspicious data with the FBI is also not a crime. Indeed, Sussmann spent a great deal of his time in 2016 doing just that after the Hillary Campaign and several other Democratic Party committees were hacked by Russia.

The allegation that Sussmann “coordinated” with a client is included as one of three materiality claims regarding Sussmann’s alleged lie. To prove Sussmann is guilty, Durham has to prove not just that Sussmann made a willfully false claim to James Baker in a meeting on September 19, 2016, but that it mattered. One way Durham claims he will do that is, first, by proving that this effort was coordinated with the Hillary campaign and then establishing that,

it was relevant to the FBI whether the conveyor of these allegations (SUSSMANN) was providing them as an ordinary citizen merely passing along information, or whether he was instead doing so as a paid advocate for clients with a political or business agenda. Had SUSSMANN truthfully disclosed that he was representing specific clients, it might have prompted the FBI General Counsel to ask SUSSMANN for the identity of such clients, which in turn might have prompted further questions.

One of the first things Sussmann did after being charged was ask — first, informally, and then, via a Motion for a Bill of Particulars — with whom on the Hillary Campaign he coordinated.

Fifth and finally, the Indictment conceals the actual identity of certain individuals and entities alleged to have witnessed and otherwise been involved in the conduct giving rise to the false statement charge, including the names of the agents and representatives of the campaign on whose behalf Mr. Sussmann was allegedly working. Id. ¶ 6. The entire animating theory of the Special Counsel’s Indictment is that, in meeting with the FBI and the other government agency, Mr. Sussmann was secretly working on behalf of Hillary Clinton’s 2016 campaign for president (the “Clinton Campaign”). The Special Counsel should be required to identify with which agents and representatives of the Clinton Campaign Mr. Sussmann was allegedly working so that Mr. Sussmann can adequately prepare his defense.

Counsel for Mr. Sussmann previously asked the Special Counsel to provide the detail and particulars identified above, but the Special Counsel declined to do so. The Special Counsel should not be permitted, on the one hand, to allege that Mr. Sussmann was working on behalf of the Clinton Campaign, but on the other hand, decline to identify the specific individuals with whom he was purportedly working.

7 The Special Counsel has identified virtually all of the other anonymous individuals and entities referred to in the Indictment (except, as noted above, the Agency-2 employees).

That motion was filed on October 6. In a response filed on October 20, Durham refused to provide the names of those on the Clinton Campaign with whom Sussmann coordinated, but instead pointed to these paragraphs of the indictment, only one of which even names people from the campaign, and none of which describes Sussmann speaking directly to anyone from the campaign.

d. In or around the same time period [mid-August 2016], SUSSMANN, [Marc Elias], and personnel from [Fusion GPS] began exchanging emails with the subject line, “Connecting you all by email.”

[snip]

g. Later in or about August 2016, [Rodney Joffe] exchanged emails with personnel from [Fusion GPS].

[snip]

e. On or about September 15, 2016, [Elias] exchanged emails with the Clinton Campaign’s campaign manager, communications director, and foreign policy advisor concerning the [Alfa Bank] allegations that SUSSMANN had recently shared with [Franklin Foer]. [Elias] billed his time for this correspondence to the Clinton Campaign with the billing entry, “email correspondence with [Jake Sullivan], [name of campaign manager], [name of communications director] re: [Alfa Bank] Article.” [emphasis added by Durham]

On October 20, over a month after indicting Sussmann, Durham was still refusing to name any Clinton Campaign personnel with whom Sussmann had coordinated directly.

That’s why this detail in Sussmann’s response to Durham’s conflict motion matters so much:

[T]he Special Counsel has alleged that Mr. Sussmann met with the FBI on behalf of the Clinton Campaign, but it was not until November 2021—two months after Mr. Sussmann was indicted—that the Special Counsel bothered to interview any individual who worked full-time for that Campaign to determine if that allegation was true.

When Durham refused to answer Sussmann’s requests, in September and October,  to tell him with whom on the Clinton campaign he had been coordinating, Durham still had never interviewed a single Clinton staffer. He first did so in November.

The discovery update submitted on January 25 reveals that that single Clinton staffer remained the sole Clinton staffer Durham had interviewed to that date.

Yesterday, Durham added a securities fraud prosecutor to his team, suggesting he’s going to try to change the theory of his case (I suspect, by suggesting Sussmann’s billing practices show he was trying to hide Rodney Joffe’s role).

But as I’ll lay out, there’s tons of instances of this, where Durham demonstrably failed to do basic investigative work before charging Sussmann five years after a claimed lie.

Update: Sussmann has filed his motion to dismiss. It is entirely a challenge to the materiality of his alleged lie. Motions to dismiss rarely work. He’s got good lawyers and he’s making a solid argument. Of note, he points out that Durham has never claimed that the tip wasn’t true or that Sussmann should have known it was not.

Guest Post: We Need to Talk about DNS

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[NB: This is a guest post by long-time community member WilliamOckham. Give him a shout in comments. /~Rayne]

For most people the Domain Name System (DNS) is one of the most boring topics imaginable. However the Department of Justice’s Special counsel John Durham – through a frothy mixture of technical incompetence and apparent malice in his published court filings – generated unusual interest in DNS from a lot of folks who’ve never thought about it before.

To understand DNS better, here’s an explanation simple enough even for lawyers who would like to keep their bosses from embarrassing them in federal court.

DNS is used to match and link domain names to Internet Protocol (IP) addresses. When one device needs to connect to another device via the internet, it needs to know the other’s IP address. Humans generally prefer to use names. Remembering a person’s or business’s name is much easier than recalling a string of numbers ranging from 12 to 32 digits (32-bits for older IPV4 addresses and 128-bits for newer IPV6 addresses).

Image: Comparitech.com c. 2019

I’ll use “example.com” to illustrate a domain name. As you might guess, example.com is a special-use domain which isn’t resolved normally; it can be used to demonstrate how domain names work without inadvertently generating unnecessary DNS lookups.

It’s a lot easier to input www.example.com instead of 2606:2800:220:1:248:1893:25c8:1946 and certainly a lot easier to remember. However your device can’t possibly store the IP address of every damn server in the entire world just to make data entry easier.

Instead, every device on the internet stores the address of one of the thousands of DNS servers. Devices are usually configured to use a DNS server maintained by the internet service provider which provides connectivity for that device.

When your device needs to connect to www.example.com, it sends a DNS lookup request to its primary DNS server. That server doesn’t store the address of every server on the internet either. If you or someone else using that DNS server has asked for that address recently, the DNS server might know the address and send it back to you.

However if it doesn’t have an IP address for example.com, it will issue requests to other DNS servers, looking for one that does know the address. In a worst case scenario, the request ends up going to one of the root DNS servers. They can reach a DNS server for any domain name on the internet.

During the time period subject to Durham’s investigation, virtually all DNS lookups happened in the open, unencrypted. They were recorded by DNS servers. Each time a website address was typed into a browser’s address bar, a DNS server logged the IP address of the device requesting the IP address for some other server. DNS lookup data isn’t proprietary or secret.

Gathering, collating, and analyzing DNS lookup requests, however, is expensive and valuable. It’s a massive amount of data. Billions of DNS requests are issued every day. There are a few companies specializing in managing incredibly large amounts of DNS data. During the time period covered by Durham’s filings, Michael Sussman’s technology executive client (Tech Executive-1) at a U.S.-based Internet company (Internet Company1) worked for such a firm.

Having access to DNS data had nothing to do with hacking servers, spying, surveillance or anything else nefarious. It was part of Tech Executive-1’s job.

Tech Executive-1’s responsibilities included monitoring anomalies in Internet Company1’s DNS database. As one of Durham’s filings indicated, Tech Executive-1’s firm found “that between approximately 2014 and 2017, there were a total of more than 3 million lookups of Russian Phone-Provider-1 IP addresses that originated with U.S.-based IP addresses.”

Contra Durham, 3 million DNS requests for a related IP addresses over a four-year period means these requests are very rare.

For comparison purposes, my best estimate is that my family (7 users, 14 devices) generated roughly 2.9 million DNS requests just from checking our email during the same time frame. That’s not even counting DNS requests for normal web browsing.

If you’re going to make a federal case out of this, at least make some attempt to understand the topic.

John Durham Chose to Meet with John Ratcliffe Rather than Witnesses Necessary to His Investigation

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The evidence continues to mount that John Durham has done an epically incompetent investigation. I’ll pull together all that evidence later this week.

But one that I find hilarious and shocking can’t wait.

A piece written by the Fox News propagandist who played a key role in magnifying Kash Patel’s false claims over the weekend credulously continues the Murdoch effort to jack up the frothers by claiming that — rather than letting statutes of limitation expire with no charges — Durham has instead sped up his investigation. Fox also cites a single source claiming that Durham’s investigation has been run very professionally.

Special Counsel John Durham’s investigation has “accelerated,” and more people are “cooperating” and coming before the federal grand jury than has previously been reported, a source familiar with the probe told Fox News.

The source told Fox News Monday that Durham has run his investigation “very professionally,” and, unlike Special Counsel Robert Mueller’s investigation, his activities, and witness information and cooperation status are rarely, if ever, leaked.

Fox unsurprisingly doesn’t cite the part of a recent filing that makes it clear that April Lorenzen doesn’t think it has been run professionally.

In fact, this piece demonstrates that no one who would actually know whether Durham’s investigation has been conducted professionally would talk to them:

Durham’s Feb. 11 filing says that the “FBI General Counsel” will “likely be a central witness at trial.”

Baker did not immediately respond to Fox News’ request for comment.

Durham also provided grand jury testimony from “the above-referenced former FBI Assistant Director for Counterintelligence.” It is unclear to which official Durham is referring, but the title could be a reference to Bill Priestap, who served as the FBI’s assistant director for counterintelligence from 2015 to 2018.

Priestap did not immediately respond to Fox News’ request for comment.

Durham also lists “a former FBI Deputy Assistant Director for Counterintelligence.” It is unclear to whom Durham is referring.

[snip]

Strzok, who was part of the original FBI investigation into whether the Trump campaign was colluding with Russia to influence the 2016 presidential election, and later in Special Counsel Robert Mueller’s office, was fired from the FBI in 2018 after months of scrutiny regarding anti-Trump text messages exchanged with former FBI General Counsel Lisa Page. Their anti-Trump text messages were uncovered by the Justice Department inspector general.

Fox News was unable to reach Strzok for comment.

[snip]

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.

A spokesperson for Elias did not immediately respond to Fox News’ request for comment. [my emphasis]

But somebody who would speak with Fox News is John Ratcliffe, the former AUSA who misrepresented his record to get elected but who nevertheless got to be Director of National Intelligence for a short period because Ric Grenell was so much more unsuited to hold the position.

As DNI, Ratcliffe made false claims about Chinese intervention in the election as a way to downplay Russia’s ongoing efforts to help Trump. Ratcliffe is currently spending a lot of time denying that his politicized views (and delay of) a mandated election interference report played some role in January 6 conspiracy theories.

We now know that Ratcliffe should be happy to make those denials to the January 6 Committee directly and under oath — because he has apparently been very happy to chat with Durham’s investigators.

Meanwhile, this week, sources told Fox News that former Director of National Intelligence John Ratcliffe met with Durham on multiple occasions and told him there was evidence in intelligence to support the indictments of “multiple people” in his investigation into the origins of the Trump-Russia probe.

Ratcliffe’s meetings with Durham are significant (beyond suggesting he may be the single source who told Fox News this isn’t a shitshow investigation) because, days before Billy Barr made Durham a Special Counsel, Ratcliffe unmasked Hillary’s identity in foreign intercepts and burned collection on Russian internal intelligence analysis in order to release a report trying to insinuate that Hillary’s fairly unsurprising decision to tie Trump to Russia is what led the FBI to investigate Trump’s ties to Russia.

At issue is a report from John Ratcliffe, sent on September 29, 2020, explaining that,

In late July 2016, U.S. intelligence agencies obtained insight into Russian intelligence analysis alleging that U.S. Presidential candidate Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin and the Russians’ hacking of the Democratic National Committee. The IC does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.

The following week, presumably in an attempt to dredge up some kind of attack out of an absurd attack, Ratcliffe released the underlying reports that, he claimed in his original report, show the following:

According to his handwritten notes, former Central Intelligence Agency Director Brennan subsequently briefed President Obama and other senior national security officials on the intelligence, including the “alleged approval by Hillary Clinton on July 26, 2016 of a proposal from one of her foreign policy advisors to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.”

On 07 September 2016, U.S. intelligence officials forward an investigative referral to FBI Director James Comey and Deputy Assistant Director of Counterintelligence Peter Strzok regarding “U.S. Presidential candidate Hillary Clinton’s approval of a plan concerning U.S. Presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private mail server.”

By releasing the exhibits, Ratcliffe should raise real questions about his credibility. For example, I’m not at all sure this date, from Brennan’s notes, reads July 26 and not July 28, a critical difference for a ton of reasons.

The FBI report has a slew of boilerplate making it clear how sensitive this report was (for obvious reasons; effectively it shows that the CIA had some kind of visibility into Russian intelligence analysis), which makes it clear how utterly unprecedented this desperate declassification is. Former CIA lawyer Brian Greer discusses that in this Lawfare post.

Plus, Ratcliffe left out an unbelievably important part of the report: the role of Guccifer 2.0 in the Russian report. Intelligence collected in late July 2016 claimed that Hillary was going to work her alleged smear around neither the GRU (which had already been identified as the perpetrator of the DNC hack) nor WikiLeaks (which had released the DNC files, to overt celebration by the Trump campaign), but Guccifer 2.0, who looked to be a minor cut-out in late July 2016 (when this intelligence was collected), but who looked a lot more important once Roger Stone’s overt and covert communications with Guccifer 2.0 became public weeks later.

The report suggests Hillary magically predicted that days after this plot, President Trump’s rat-fucker would start a year’s long campaign running interference for Guccifer 2.0. Not only did Hillary successfully go back and trick George Papadopoulos into drunkenly bragging about Russian dangles in May 2016, then, Hillary also instantaneously tricked Stone into writing propaganda for Guccifer 2.0 days later.

The report never made any sense. As I noted at the time, to be true, it would require Hillary to have gone back in time to trick the Coffee Boy to learn of and pass on Russia’s plans. Worse still, the claim suggested that Roger Stone — whom FBI has evidence was in contact with the Guccifer 2.0 persona starting in spring 2016 — started parroting the same line the Russians were pushing, even before the FBI learned of it. In other words, read in conjunction with the actual evidence about 2016, the intelligence report on Russia actually suggested that Stone’s ties to Russian intelligence may have been far more direct than imagined.

But John Ratcliffe was too stupid to understand that, and everything we’ve seen about John Durham suggests he is too. That Durham has been repeatedly interviewing Ratcliffe suggests he buys Ratcliffe’s theory that this should have undermined the very real reason to investigate Trump. It also explains why, on the Sussmann indictment, Durham was so squishy about the July 2016 timeline: he needs this report to be more important than the fact that Trump stood up in public and asked Russia to hack some more (which is what led the researchers to look twice at this anomalous data).

Nevertheless, it appears that rather than interviewing witnesses who would be necessary to vet the charges he filed against Michael Sussmann, such as a single Hillary staffer, Durham has, instead, just kept going back to serial liars like Ratcliffe to renew his own conspiracy theories.

Ah well, this disclosure gives Michael Sussmann cause to subpoena Ratcliffe, just like this stunt has given him reason to subpoena Kash Patel. It’s increasingly clear that these addle-brained Republicans fed these conspiracies into Durham’s investigation, and now are magnifying them as Durham’s investigation gets exposed as incompetent, without disclosing that they’re the ones who provided the conspiracy theories in the first place.

Donald Trump Suggested Michael Sussmann Should Be Killed because Rodney Joffe “Spied” on Barack Obama

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Michael Sussmann has filed his response to John Durham’s transparent attempt to inflame the frothers. In it, he notes what I did: Durham used an unrelated filing (one that, Sussmann’s filing noted, had already been addressed between the parties) to make claims that were not charged.

Importantly, he notes that Durham misrepresented the dates of the anomalous data found at the Executive Office of the Presidency that Sussmann presented at a February 9, 2017 meeting with the CIA. The data predates the Donald Trump inauguration.

In his Motion, the Special Counsel included approximately three pages of purported “Factual Background.” See Dkt. No. 35 at 2–5. Approximately half of this Factual Background provocatively—and misleadingly1 —describes for the first time Domain Name System (“DNS”) traffic potentially associated with former President Donald Trump, including data at the Executive Office of the President (“EOP”), that was allegedly presented to Agency-2 in February 2017. See id. at 3–4. These allegations were not included in the Indictment; these allegations post-date the single false statement that was charged in the Indictment; and these allegations were not necessary to identify any of the potential conflicts of interest with which the Motion is putatively concerned. Why then include them? The question answers itself.

1 For example, 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, when Barack Obama was President. Further—and contrary to the Special Counsel’s alleged theory that Mr. Sussmann was acting in concert with the Clinton Campaign—the Motion conveniently overlooks the fact that Mr. Sussmann’s meeting with Agency-2 happened well after the 2016 presidential election, at a time when the Clinton Campaign had effectively ceased to exist. Unsurprisingly, the Motion also omits any mention of the fact that Mr. Sussmann never billed the Clinton Campaign for the work associated with the February 9, 2017 meeting, nor could he have (because there was no Clinton Campaign). [my emphasis]

Not only must Durham know the true dates of the data involved but so — as I’ve noted — must Kash Patel, who has known about this issue for four years. That means Patel insinuated that Hillary’s associates hacked Trump, knowing full well the claim was false.

And it led the former President to claim that those involved should be killed.

Sussmann has asked Judge Christopher Cooper to strike the improper language from the motion.

He has also provided yet more evidence that Durham didn’t take basic investigative steps necessary to vet the allegations he made in the indictment before actually indicting Sussmann. Durham didn’t interview any Clinton Campaign staffer to find out whether Sussmann coordinated with the campaign until after the indictment.

[T]he Special Counsel has been investigating for years, and some of the Special Counsel’s “ongoing” investigation seems to be work that should have been completed before indicting Mr. Sussmann. For example, the Special Counsel has alleged that Mr. Sussmann met with the FBI on behalf of the Clinton Campaign, but it was not until November 2021—two months after Mr. Sussmann was indicted—that the Special Counsel bothered to interview any individual who worked full-time for that Campaign to determine if that allegation was true. It is not.

As I noted earlier, Durham had to admit that he had no basis to substantiate claims of coordination with the Hillary Campaign in a filing last year. But that was October. It was not until after he had to confess he had overblown that claim in the indictment that Durham first interviewed a Hillary staffer.

In his filing, Sussmann makes it clear he intends to move to dismiss the indictment.

In addition, Mr. Sussmann reserves all rights to submit appropriate motions and seek appropriate relief concerning this conduct should the Indictment not be dismissed and should the case proceed to trial, including by seeking extensive voir dire about potential jurors’ exposure to prejudicial media resulting from the Special Counsel’s irresponsible actions.

If he keeps to the original filing deadline, that motion will be submitted this Friday. While not normally a basis to dismiss an indictment, Sussmann will be able to present entire swaths of proof that Durham didn’t take basic investigative steps before accusing Sussmann of things that turned out not to be true.

And now he’ll be able to point back to this filing to show that Durham misrepresented basic facts that might get someone killed.

Update: I managed a whole appearance on MSNBC without potty mouth.

“Fill the Silence:” On Obstruction, Listen to DOJ and Merrick Garland

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Happy Valentines Day, the day on which TV lawyers proclaim that DOJ has let the statutes of limitation on Trump crimes expire, in this case, Trump’s request of Jim Comey that he let the Mike Flynn investigation go.

As I noted in a relevant post last week, Randall Eliason wrote a column last week demanding that the “Biden Justice Department [] issue a report on the Mueller report.”

Today, Ben Wittes and Quinta Juercic wrote a worthwhile piece positing five different possibilities for how Garland dealt with the Mueller Report. Those five are:

  1. “Garland considers the matter closed as a result of Barr’s having closed it.”
  2. DOJ “review[ed] Barr’s judgment but agrees with him on any of a number of legal positions that would make a prosecution of the former president nearly impossible.”
  3. DOJ “quietly reopened the matter, at least for paper review—that is, not for investigation but to review the conclusions based on the collected evidence—and agreed with Barr’s judgments on the facts.”
  4. DOJ “quietly began reviewing Barr’s judgment and is letting certain statutes of limitations lapse because it considers the later fact patterns more plausible criminal cases than the earlier ones.”
  5. “The Garland-run Justice Department never even considered the question of whether to, well, consider the question.”

It’s a worthwhile piece because it gets inside the brain of a DOJ institutionalist and attempts to game out how they might think.

But their discussion is absolutely silent about several pieces of public evidence showing Garland’s DOJ taking action, even while demanding that Garland, himself, “fill the silence.”

That is, they make the mistake of claiming DOJ has been entirely silent. It has not been. They simply haven’t listened to what DOJ has already said.

“The matter” was not closed as of November 2020

Jurecic and Wittes treat “this matter” as a self-evident whole, without defining what they mean by it. I assume when they use the term, “this matter,” they’re referring to Trump’s obstructive actions described in the second Volume of the Mueller Report.

Such shorthand is why, in my own post, I pointed out that most people engaging in this discussion (and I include Jurecic and Wittes in this group), account for the fact not all of Trump’s criminal exposure was in the second Volume. Materials unsealed in September 2020, for example, confirm that DOJ continued to investigate Trump for a big infusion of cash from an Egyptian bank in September 2016 until that summer (CNN’s reporting on it confirmed that timing).

A footnote unsealed (and therefore buried and still all-but unreported) the day before the 2020 election revealed that the investigation into whether Roger Stone conspired with Russia continued after Mueller shut down. Redactions that (in an earlier release) were identified as relating to the Stone matter treated that matter as an ongoing investigation in November 2020.

Similarly, in October 2020, DOJ treated the investigation into a pardon dangle for Julian Assange as an ongoing investigation. In fact, one of the issues that Lawfare treats as exclusively a matter of obstruction –Trump’s direction to Corey Lewandowski to order Jeff Sessions to shut down the entire Russian investigation — likely relates closely to the pardon dangle to Assange, because it came days after Stone told Assange he was intervening with the highest level of government to alleviate Assange’s woes.

We don’t know how many of the ten referrals still redacted in November 2020 remain ongoing; when DOJ released information to Jason Leopold last week, they just chose to release the four pages covered by a DC Circuit order and not a full reissued report. But we do know that “the matter” of the Mueller investigation was not closed as recently as November 2020.

DOJ IG was investigating follow-on obstruction

Both before Trump was ousted by voters and since, reports confirmed that DOJ’s Inspector General was investigating things that should be treated as follow-on obstruction, most explicitly Billy Barr’s efforts to undercut the Roger Stone prosecution but also Barr’s preferential treatment of Paul Manafort as compared to Michael Cohen (the latter will be part of Michael Horowitz’s review of BOP COVID response). Given DOJ IG’s past work, it’s not clear that this will be very critical of Barr’s own role.

One way or another, though, we have weeks-old confirmation that some of it remains under review. Depending on what DOJ IG finds, it’s possible (though unlikely) that might provide predicate to reopen past decisions.

But such a review also means that, because DOJ IG reviews add years to any investigative process, there will be a significant delay before we hear about such matters.

Merrick Garland has told you what he thinks about the OLC memo on prosecuting a President (and, to a lesser extent, OLC memos generally)

Two of Lawfare’s possibilities, especially the second, rely on a deference to OLC, including the declination memo that Amy Berman Jackson partially unsealed (and about which further unsealing the DC Circuit is currently considering).

We know that Garland’s DOJ will defer to most previous OLC memos, in part because his DOJ did so in fighting further unsealing of this memo. But we know even more about what Garland thinks of the memo prohibiting charging a president from an exchange on the topic Garland had with Eric Swalwell in October.

Garland: Well, Office of Legal Counsel memoranda, particularly when they’ve been reviewed and affirmed by Attorneys General and Assistant Attorneys General of both parties, it’s extremely rare to reverse them, and we have the same kind of respect for our precedents as the courts do. I think it’s also would not normally be under consideration unless there was an actual issue arising and I’m not aware of that issue arising now. So I don’t want to make a commitment on this question.

Swalwell: I don’t want to talk about any specific case but, just, in general, should a former President’s suspected crimes, once they’re out of office, be investigated by the Department of Justice?

Garland: Again, without, I don’t want to make any discussion about any particular former President or anything else. The memorandum that you’re talking about is limited to acts while the person was in office, and that’s all I can say.

Swalwell: And should that decision be made only after an investigation takes place before deciding beforehand a general principle of we’re not going to investigate a former President at all? Would you agree that if there are facts, those should be looked at?

Garland: Again, you’re pushing me very close to a line that I do not intend to cross. We always look at the facts and we always look at the law in any matter before making a determination.

In the exchange, Garland makes quite clear that, “it’s extremely rare to reverse” OLC memos because, “we have the same kind of respect for our precedents as the courts do.” Garland also explained that memo and any others (including Barr’s declination memo), “would not normally be under consideration unless there was an actual issue arising and I’m not aware of that issue arising now.”

One reason the memo is not at issue right now is because, “The memorandum that you’re talking about is limited to acts while the person was in office.” But as has often been ignored (though I pointed it out last month), the most recent known version of an OLC memo prohibiting the indictment of a sitting president is significantly premised on the constitutionality of a President being prosecuted after he leaves office even if he was acquitted by the Senate for the same conduct in an impeachment trial.

Randolph Moss, serving as Assistant Attorney General for OLC in 2000, famously wrote the following:

Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.

Less famously, however, the first 11 pages of that more famous memo rely on this earlier OLC memo from Moss:

We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.

By stating that those odious OLC memos remain valid — that is, by deferring to OLC precedent — Garland was in the same breath saying that a former President can be indicted, including for things he was acquitted of in the Senate.

Obviously, Mueller’s findings never made it to the Senate. But Trump’s attempt to coerce Ukraine did and Trump’s attempted coup did.

There are four relevant investigations that tell you how Garland’s DOJ has approached this

In their piece and podcast, Jurecic and Wittes speak as if what Garland would do is entirely hypothetical, as if we don’t know what DOJ would consider palatable regarding earlier criminal exposure.

Except we do know, a bit, because four of the eight investigations into Trump flunkies that have been publicly confirmed provide some insight. For example:

  • Tom Barrack: Barrack confirmed in a recent filing what prior reporting had laid out: this investigation arose out of the Mueller investigation. “As early as December 2017, Mr. Barrack voluntarily produced documents and met with prosecutors in the Special Counsel’s Office investigation, which was led by Robert Mueller and included prosecutors from the Eastern District of New York.” It’s possible it was the first of those ten referrals that remained sealed in November 2020. If it was, it is an indication DOJ would pursue a prosecution arising out of the Mueller investigation that was substantially complete before Trump left, though even in that case it took four months after Garland was sworn in.
  • Erik Prince: It’s not clear whether the investigation into Erik Prince that Billy Barr shut down in 2019-2020 arose out of the Mueller investigation (though it is clear that any Mueller investigation into Prince had been closed by September 2020). I first alluded to a renewed investigation into Prince in this post, and NYT has since publicly confirmed it. I’m no more certain about the scope of the renewed investigation than the NYT, but I do know it is in a different District and it does overlap with the prior investigation, at least somewhat. That doesn’t tell you what DOJ would require to reopen a closed Mueller investigation, but it does show that Lisa Monaco would permit a prior, closed investigation to be reopened, perhaps with a new hook or newly acquired evidence.
  • Rudy Giuliani: The confirmed investigation into Rudy pertains to his Ukraine influence-peddling with a scope from May 2018 through November 2019. As such, except insofar as those actions were a continuation of efforts Paul Manafort had started in 2016, they say nothing about how Garland would treat a continuing Mueller investigation. But we do know one utterly critical fact and another key detail: First, the warrants to seize Rudy’s phones were approved on Monaco’s first day in office. That’s a pretty compelling piece of proof that Garland’s DOJ is not going to shy away from Trump’s closest flunkies. Significantly, SDNY successfully fought to get a privilege waiver spanning from January 1, 2018 (so before Rudy started Trump obstruct the Mueller investigation) through the date of seizure, April 28, 2021 (so through the attempted coup). This tells you that Garland’s DOJ could investigate Rudy for any of his suspected criminal actions, and no one would know about it.
  • Robert Costello: Costello is the lawyer through whom, the Mueller Report describes, Rudy was dangling a pardon for Michael Cohen for back in April 2018 (so within the scope of the privilege review). Currently, he is both Rudy’s lawyer overseeing that privilege review and Steve Bannon’s lawyer. After getting Bannon out of his Build the Wall fraud indictment with a pardon (sound familiar?), Costello helped Bannon walk into a contempt indictment based off non-cooperation with the January 6 investigation. All that background establishes that Costello is just tangential to the Mueller Report (though where he appears, he appears as part of the efforts to obstruct the investigation). But the details of DOJ’s seizure of Costello’s toll records after he made some contradictory claims in FBI interviews on the Bannon contempt case are worth examining closely. That’s because DOJ’s interest in the toll records cannot pertain solely to the January 6 subpoena to Bannon; the scope of the seizure not only predates the subpoena, but predates the establishment of the committee entirely (and happens to cover the entirety of the privilege review Costello oversaw). It’s tough to know what to make of this, but it is indication, like the approval of warrants targeting Rudy, that Garland’s DOJ will take fairly aggressive action pursuing obstruction and other crimes.

Trump is likely on the hook for other obstructive actions

The Lawfare piece claims that, aside from the pardons of Manafort, Stone, and Flynn, there’s no new evidence pertaining to Mueller-related obstruction (and other crimes).

And it’s not like new evidence has emerged since Mueller issued his reports—save the 2020 pardons of Manafort, Stone and Flynn.

But that’s not true. On top of whatever evidence DC USAO obtained on Stone after Mueller shut down (one of which was Andrew Miller’s long-awaited testimony), the government appears to have obtained more evidence on the other example of direct conspiracy with Russia. In the years since Mueller finished, the government has apparently developed new certainty about two details Mueller expressed uncertainty about: Konstantin Kilimnik is a “known Russian Intelligence Services agent,” and he, “provided the Russian Intelligence Services with sensitive information on polling and campaign strategy” in 2016. That suggests DOJ obtained new evidence (and may be why FBI put a $250,000 reward out for Kilimnik’s arrest in summer 2020). Whatever new details are behind this increased certainty, it could change DOJ’s understanding of Manafort’s actions as well. Add in the fact that Treasury accuses Kilimnik of continuing such information operations into the 2020 election — when Rudy was the pivot point — and Trump’s three big scandals may be converging.

But there may well be other obstructive acts, pertaining to the Mueller crimes, as well. Amid all the discussion of Trump’s destruction or removal of classified Presidential Records when he left the White House, for example, there has been little consideration about whether any of those documents pertain to Mueller or the other two investigations Trump obstructed. The January 6 Commission has already confirmed, for example, that some of the Trump documents they obtained were ripped up, and since the investigation into January 6 started immediately, it is highly likely the attempted document destruction happened while the investigation was pending. CNN’s most recent update on Trump’s stand-off with the Archives (in which someone who sounds like Impeachment One Defense Attorney Pat Philbin refused to turn over a document NARA knew to come looking for) is consistent with obstruction, possibly tied to the original Perfect Transcript.

None of this is proof of discrete new evidence on obstruction. Rather, it looks more like the never-ending wave of obstruction all runs together, with the pardons for Stone and Flynn (either, like Stone, known to be under investigation or closely tied to someone, Sidney Powell, known to be)  linking the obstruction of Mueller with the implementation of the coup attempt.

I can’t explain what, precisely, Garland’s DOJ is doing with the Mueller Report (besides prosecuting Trump’s top donor as a foreign agent on a referral from it). But it is simply false that DOJ has been silent about it.

Where DOJ has been speaking, however, is in active dockets and not in a three year old report.

Josh Schulte Described the Damage Giving Russia Advance Access to the Vault 8 Files Would Have Caused

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As part of a fight over whether the government obtained Josh Schulte’s explanation of his FBI interview via Schulte’s prison notebooks or via subpoena from a Schulte associate (probably a family member), the government released a redacted version of that explanation, ostensibly a chapter in his “Presumed Innocent” blog. It’s fascinating for a slew of reasons (including that he lays out that it would be a crime to expose the identities of his colleagues, and then does just that).

For now, though, I want to look at what Schulte claims he told the FBI about the damage sharing the CIA source code files with Russia would do (none of this appears in the 302 of the interview).

I told them the confluence server was the one that seemed to be compromised, and while horrible and damaging at least it wasn’t Stash; At least not at this point–Hopefully they could stop any additional leaks from the network at this point. From the news articles I’ve read, wikileaks claims to have source code, but we don’t know what code or from where. However, at this point, I knew the SOP was a complete stand down on all [redacted] operations. We had no idea what had been leaked, when, for how long, or even who else had seen the materials leaked. Have they been steadily accessing our network every day? Have all our ops been blown since we wrote the first line of code? Perhaps only confluence had been leaked, but the individual(s) responsible are/were planning to exfil the other parts of DEVLAN too? So much still unknown, and with potential (yet unconfirmed) link between wikileaks and Russia–Did the Russians have all the tools? How long? It seems very unlikely that an intelligence service would ever leak a nation’s “cyber weapons” as the media calls them. These tools are MUCH more valuable undiscovered by the media or the nation that lost them. Now, you can secretly trace and discover every operation that nation is conducting. I told them all this was certainly very disturbing and I felt bad for my friends and colleagues at the agency who likely weren’t doing anything and most likely had to completely re-write everything.

I’m frankly shocked that DOJ didn’t use this file in his first trial, as it accurately describes what multiple witnesses testified happened after WikiLeaks first published the leak: everything ground to a halt while CIA tried to mitigate damage. And as Schulte predicted, the Agency did have to rewrite everything. This is powerful evidence that, if Schulte is found guilty, he knew well what kind of damage he would cause.

Particularly given that I was told Schulte himself reached out to Russia at some point (I’m not convinced this is accurate; it may reflect a misunderstanding of discovery), I find what he said about another nation-state — and he named Russia — obtaining the documents to be particularly interesting.

To be fair to Schulte, when he allegedly leaked the documents (in April-May 2016), there was far less understanding of WikiLeaks’ ties to Russia. So these comments may reflect what he understood in March 2017, after WikiLeaks helped Russia tamper in the election.

But what Schulte describes is precisely what the CIA would have been panicking about in summer 2017, as they ratcheted up spying on WikiLeaks associates. What he described with respect to WikiLeaks’ publication is precisely what happened. With just a few exceptions (published at key moments), WikiLeaks published none of the CIA’s source code. Given what we now know of WikiLeaks’ ties to Russia, there’s a real possibility Russia obtained the files even before the US understood the full extent of Russia’s intervention in the 2016 election. As Schulte accurately describes (and I laid out here), Russia could have spent the months in the interim reverse engineering all the US operations targeting Russia and its clients.

This is something that overblown Yahoo article alluded to, but then never really considered. At precisely the moment US intelligence was beginning to understand that Assange was a Russian asset, they were never able to rule out that this is precisely what Russia did with the files.

Kash Patel Knew, and Did Nothing, about the Latest Durham-Related Frenzy

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As predicted, the latest Durham filing has jacked up the frothy right. It even led the Former President to claim these actions should be “punishable by death.”

But the oddest statement came from “Former Chief Investigator for Russia Gate [sic]” and current key witness to an attempted coup, Kash Patel, sent out by the fake Think Tank that hosts some of the former Trumpsters most instrumental in covering up for Trump corruption.

Taken literally (which one should not do because it is riddled with false claims), the statement is a confession by Kash that he knew of what others are calling “spying” on Trump and did nothing to protect the President.

Let’s start, though, by cataloguing the false claims made by a man who played a key role in US national security for the entirety of the Trump Administration.

First, he claims that the Hillary Campaign, “ordered … lawyers at Perkins Coie to orchestrate a criminal enterprise to fabricate a connection between President Trump and Russia.” Thus far, Durham has made no claims about any orders coming from the Hillary Campaign (and the claim that there were such orders conflicts with testimony that Kash himself elicited as a Congressional staffer). The filing in question even suggests Perkins Coie may be upset about what Sussmann is alleged to have done.

Latham – through its prior representation of Law Firm-1 – likely possesses confidential knowledge about Law Firm-1’s role in, and views concerning, the defendant’s past activities.

In fact, in one of the first of a series of embarrassing confessions in this prosecution, Durham had to admit that Sussmann wasn’t coordinating directly with the Campaign, as alleged in the indictment.

Kash then claims that “Durham states that Sussmann and Marc Elias (Perkins Coie) … hired .. Rodney Joffe … to establish an ‘inference and narrative’ tying President Trump to Russia.” That’s false. The indictment says the opposite: Joffe was paying Perkins Coie, not the other way around. Indeed, Durham emphasized that Joffe’s company was paying Perkins Coie a lot of money.  And in fact, Durham shows that the information-sharing also went the other way. Joffe put it together and brought it to Perkins Coie. Joffe paid Perkins Coie and Joffe brought this information to them.

Kash then claims that “Durham writes that he has evidence showing Joffe and his company were able to infiltrate White House servers.” Kash accuses the Hillary Campaign of “mastermind[ing] the most intricate and coordinated conspiracy against Trump when he was both a candidate and later President.” This betrays either real deceit, or ignorance about the most basic building blocks of the Internet, because nowhere does Durham claim that Joffe “infiltrated” any servers. Durham, who himself made some embarrassing technical errors in his filing, emphasizes that this is about DNS traffic. And while he does reveal that Joffe “maintain[ed] servers for the EOP,” that’s not infiltrating. These claims amount to a former AUSA (albeit one famously berated by a judge for his “ineptitude” and “spying”) accusing a conspiracy where none has been charged, at least not yet. Plus, if Joffe did what Kash claims starting in July 2016, as Kash claims, then Barack Obama would be the one with a complaint, not Trump.

Finally, Kash outright claims as fact that Joffe “exploited proprietary data, to hack Trump Tower and the Eisenhower Executive Office Building.” This claim is not substantiated by anything Durham has said and smacks of the same kind of conspiracy theorizing Louise Mensch once engaged in. Only, in this case, Kash is accusing someone who has not been charged with any crime — indeed, a five year statute of limitation on this stuff would have expired this week — of committing a crime. Again: a former AUSA, however inept, should know the legal risk of doing that.

Curiously, Kash specifies that the White House addresses involved were in the Eisenhower Executive Office Building. That could well be true, but Durham only claims they were associated with EOP, and as someone who worked there, Kash should know that one is a physical structure and the other is a bureaucratic designation. But to the extent Kash (who has flubbed basic Internet details already) believes this amounted to hacking the EOP, it is based off non-public data.

So, like I said, the piece is riddled with false claims, but with two claims that go beyond anything Durham has said.

The statement is all the stranger given that Kash Patel knew about these allegations four years ago, at a time when he was one of the most powerful Congressional staffers on matters pertaining to intelligence.

And he did nothing about them.

Well. He did do something.

He started this line of inquiry — brought it up entirely out of the blue — in an interview of Michael Sussmann largely focused on Sussmann’s response to a hostile attack by Russia.

About a quarter of the way into an interview on December 18, 2017, after Sussmann debunked the frothy right’s conspiracy theory about the DNC being unwilling to share information with the FBI (which was a central focus of the interview), a staffer veered away from that line of questioning and asked about other meetings. Sussmann answered the questions that someone interested in cybersecurity would have wanted to know: how does the government share information with a high-profile victim of a nation-state attack?

Q Thats helpful. Thank you Going over to – moving on from CrowdStrike and the FBI, did you ever have any interactions with any other government agencies in relation to the DNC hack, Russian involvement in the 2016 elections, or anything like that, or any members of any government agencies?

A So.yes. For the intrusion, I believe our contacts initially and for a while were only with the FBI. And there came a time when we got involved with the Department of Homeland Security, and had a variety of ongoing meetings with them for various purposes. We reached out to State officials, to the State — Association of Chief Information Officers from the States.

But that’s not what this staffer was interested in. This staffer was thinking big.

Q Did you meet with anybody else, any members of the Intelligence Community, either officially or unofficially, to discuss these matters?

MS. RUEMMLER: With respect to the DNC?

Q The DNC, the 2016 Russia election, all things that fit under that sort of general big title.

Sussmann, perhaps sensing this staffer was about to deliver a gotcha, noted that he didn’t always know who was in a room.

A So let me provide one general exception. I had meetings and calls with the FBI when there were a lot of people in the room, and I don’t necessarily know —

Q Yeah, I don’t mean that.

A — who was there.

That’s not what this staffer was after either. The staffer wanted to know about a meeting Sussmann had with the CIA.

Q I don’t mean the FBI. I don’t mean those big conference calls or anything like that. I mean, did you have any engagements with any members of the Intelligence Community, not the FBI, one-on-one, or in small groups, or telephone calls, or communications with folks, say, such as the Central Intelligence Agency?

Sussmann responded as to the subject of the interview, the DNC hack: no, all the meetings were with FBI or DHS. That’s when the staffer in question revealed he wanted to know about other topics.

A I think as regards to the I think all of the hacking ~ I think all of the hacking stuff was limited to the FBI and DHS.

Q Okay. So you never had any communications with members of the CIA [redacted] discussing the ~ not only the hack, but also the possible Russian intrusion and Russian involvement in the 2016 election?

That’s when Kathryn Ruemmler, representing Sussmann, referred to the staffer in question by name: Kash. This line of questioning was done by Kash Patel (which isn’t surprising, seeing as how at the time he was the “Chief Investigator for Russia Gate [sic].”

MS. RUEMMLER: Kash, just to clarify, you’re talking about the 2016 timeframe here? [my emphasis]

The staffer now identified as Kash continued, making it clear he already knew the answer to the question he was asking. He already knew about this meeting.

Q Well, that’s when that incident occurred. I’m asking if you ever have from that time until today?

A So I have — I have various contacts with members of law enforcement and the Intelligence Community on behalf of a number of different clients. So I’m not sure how to —

Q Sure. I’ll narrow it down for you. Fair enough. As it relates to what you and I have been talking about here today

A Right

Q –that is, the DNC hack, the Russian involvement in the 2016 election, and any information that was derived therefrom, did you meet or discuss with any members of the Intelligence Community outside of the FBI to provide information, talk to them about these matters? Did they reach out to you? Did anything like that ever happen in 2016 or 2017

With her client having been asked about a topic that wasn’t among the topics he had prepared to discuss or among the clients whose privileged matters he had gotten prior authorization to discuss and apparently worried about ethical issues, Ruemmler asked if she and Sussmann need to take a minute to confer.

MS. RUEMMLER: Do you want to confer for a second?

MR. SUSSMANN: I just want to talk about the range of – I have a lot of different clients, and since we’ve just spoken —

MS. RUEMMLER: As long as you don’t reveal identity of them, which You’re not permitted to do under the rules, or any content.

MR. SUSSMANN: Can we step outside and talk about how to deal with the range of clients?

MS. RUEMMLER: Yes.

[Discussion off the record.]

MR. SUSSMANN: Thank you.

At this point, if Sussmann were really hiding this stuff (as John Durham claims), he could have refused to answer the question, citing that privilege and the off-topic question. But Sussmann didn’t do that. He consulted with Ruemmler (something that Durham is now making a stink about), then came back in the room, noted that Kash had asked an off-topic question, but nevertheless answered honestly.

[The reporter read the record as requested.]

MR. SUSSMANN: So I’m not clear as to the scope of what you’re asking your question, but I’m going to be sort of more expansive in my answer, because there’s nothing — you said in relation to the things that we discussed today, and this is not something we’ve discussed today.

But I did have — I don’t believe I had — s0 two things. I don’t believe I had — I didn’t have direct contact with [NSA] butI can relate to you some indirect contacts with [NSA]. And I had a meeting [at CIA] as well.

That’s what Kash was looking for.

Okay.

Sussmann explained, noting that this was classified.

A The [NSA] contact related to specifically my representation of the DNC, and my contact [with CIA] did not relate to my specific representation of the DNC, or the Clinton campaign, or the Democratic Party. And I also — I’m not — I will do the best that I can with you. I think there are limits to what I can discuss in an unclassified setting.

Kash asked about the CIA meeting.

Q Okay, fair enough. What was your contact [with CIA] about?

A So the contact [with CIA] was about reporting to them information that was reported to me about possible contacts, covert or at least nonpublic, between Russian entities and various entities in the Untied States associated with the — or potentially associated with the Trump Organization.

Q And when did that contact [with CIA] occur, month and year?

A February 2017.

Q Where did you get that information from to relay to [CIA]?

A From a client of mine.

Q Why did you go [to CIA]

After Ruemmler interrupted again to remind Sussmann not to violate privilege, he explained that he reached out on this front because he knew of Obama’s effort to get a review of potential Russian involvement in the election.

Q You did say, right, that you had — you’d received information from a client — I’m not asking who — that may be germane to the 2016 election and associates of the Trump campaign or people affiliated with the Trump campaign.

So my follow-up question was, why did you go to [CIA] with this information?

A Oh, I’m sorry. And I apologize. I remember what I was going to say. It was — it was, in large part, in response to President Obama’s post-election IC review of potential Russian involvement in the election. And in that regard, I had made outreach prior to the change in administration in 2016. And for reasons known and unknown to me, it took a long time to — or it took — you know, it took a while to have a meeting, and so it ended up being after the change in administration.

The line of questioning continued later with someone else, because Kash had to leave. In those questions, Sussmann factually answered the information came from a client he had represented before the DNC, and admitted he had the information prior to the election. He explained his motive for sharing the information with James Baker (which led the FBI to be able to intervene and prevent the NYT from publishing, something Durham didn’t bother to investigate before indicting Sussmann) and CIA. He admitted that Perkins Coie still represented the DNC when he met with the CIA, though he wasn’t doing work for them anymore. And, in a passage that will be a focal point of the trial, he described how he and Joffe decided together to share this information.

Q Okay. I want to ask you, so you mentioned that your client directed you to have these engagements with the FBI and [CIA] and to disseminate the information that client provided you. Is that correct?

A Well I apologize for the double negative. It isn’t not correct, but when you say my client directed me, we had a conversation, as lawyers do with their clients, about client needs and objectives and the best course to take for a client.

And so it may have been a decision that we came t0 together. I mean, I don’t want to imply that I was sort of directed to do something against my better judgment, or that we were in any sort of conflict, but this was — I think its most accurate to say it was done on behalf of my client.

In other words, Kash and his colleagues have known the outlines of this for over four years.

At the time, and in his next job at NSC, Kash would have had ready access to the CIA for more details about the meeting — indeed, he came into this interview knowing about it already.

At the time, and in his next job at NSC, and in his next job as DOD Chief of Staff, Kash would have had knowledge of Rodney Joffe’s contracts with FBI and NSA.

At the time, and in his next job at NSC, and in his next job as DOD Chief of Staff, Kash would have had access to the DARPA contract, which got extended afterwards.

In his comment, the Former President said that “those who knew about this” should be subject to criminal prosecution. And Kash Patel was, at all moments between December 2017 and January 2021, not only aware of the outlines and the players, but he did nothing.

Whatever else this kerfuffle has done, it has made Kash’s exposure as a witness in this case quite dicey. Because not only is Kash a witness that Sussmann was not hiding what he did, but he is someone who for years was in a position to do something about it, and he did nothing.