Two men indicted by Durham will go on trial in 2022

Former Federal Prosecutor James Trusty details what to expect in 2022 as two men have been indicted as a result of the Durham probe into the roots of the Trump-Russia investigation

First on Fox: Lawyers for the Clinton campaign paid a technology company to "infiltrate" servers belonging to Trump Tower, and later the White House, in order to establish an "inference" and "narrative" to bring to government agencies linking Donald Trump to Russia, a filing from Special Counsel John Durham says.

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

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

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But Durham's filing on Feb. 11, in a section titled "Factual Background," reveals that Sussman "had assembled and conveyed the allegations to the FBI on behalf of at least two specific clients, including a technology executive (Tech Executive 1) at a U.S.-based internet company (Internet Company 1) and the Clinton campaign." 

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

Special Counsel John H. Durham

Special Counsel John H. Durham


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

Durham's filing states that in July 2016, the tech executive worked with Sussman, a U.S. investigative firm retained by Law Firm 1 on behalf of the Clinton campaign, numerous cyber researchers and employees at multiple internet companies to "assemble the purported data and white papers."

"In connection with these efforts, Tech Executive-1 exploited his access to non-public and/or proprietary Internet data," the filing states. "Tech Executive-1 also enlisted the assistance of researchers at a U.S.-based university who were receiving and analyzing large amounts of Internet data in connection with a pending federal government cybersecurity research contract."

"Tech Executive-1 tasked these researchers to mine Internet data to establish 'an inference' and 'narrative' tying then-candidate Trump to Russia," Durham states. "In doing so, Tech Executive-1 indicated that he was seeking to please certain 'VIPs,' referring to individuals at Law Firm-1 and the Clinton campaign."

Former U.S. President Bill Clinton and First Lady Hillary Clinton arrive for the Presidential Inauguration of Trump at the U.S. Capitol in Washington, D.C., U.S., January 20, 2017.

Former U.S. President Bill Clinton and First Lady Hillary Clinton arrive for the Presidential Inauguration of Trump at the U.S. Capitol in Washington, D.C., U.S., January 20, 2017. (REUTERS/Saul Loeb/Pool)

Durham also writes that during Sussman's trial, the government will establish that among the Internet data Tech Executive-1 and his associates exploited was domain name system (DNS) internet traffic pertaining to "(i) a particular healthcare provider, (ii) Trump Tower, (iii) Donald Trump's Central Park West apartment building, and (iv) the Executive Office of the President of the United States (EOP)."

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Durham states that the internet company that Tech Executive-1 worked for "had come to access and maintain dedicated servers" for the Executive Office of the President as "part of a sensitive arrangement whereby it provided DNS resolution services to the EOP."

"Tech Executive-1 and his associates exploited this arrangement by mining the EOP's DNS traffic and other data for the purpose of gathering derogatory information about Donald Trump," Durham states.

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

Durham says the allegations "relied, in part, on the purported DNS traffic" that Tech Executive-1 and others "had assembled pertaining to Trump Tower, Donald Trump's New York City apartment building, the EOP, and the aforementioned healthcare provider."  

In Sussman's meeting with the second U.S. government agency, Durham says he "provided data which he claimed reflected purportedly suspicious DNS lookups by these entities of internet protocol (IP) addresses affiliated with a Russian mobile phone provider," and claimed that the lookups "demonstrated Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House and other locations."

Pedestrians pass the Trump Tower building, Tuesday, July 7, 2020, in New York. (AP Photo/Frank Franklin II)

Pedestrians pass the Trump Tower building, Tuesday, July 7, 2020, in New York. (AP Photo/Frank Franklin II)

"The Special Counsel's Office has identified no support for these allegations," Durham wrote, adding that the "lookups were far from rare in the United States."

"For example, the more complete data that Tech Executive-1 and his associates gathered--but did not provide to Agency 2--reflected that between approximately 2014 and 2017, there were a total of more than 3 million lookups of Russian Phone-Prover 1 IP addresses that originated with U.S.-based IP addresses," Durham wrote. "Fewer than 1,000 of these lookups originated with IP addresses affiliated with Trump Tower."

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

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

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

Former President Trump reacted to the filing on Saturday evening, saying Durham’s filing "provides indisputable evidence that my campaign and presidency were spied on by operatives paid by the Hillary Clinton Campaign in an effort to develop a completely fabricated connection to Russia."

"This is a scandal far greater in scope and magnitude than Watergate and those who were involved in and knew about this spying operation should be subject to criminal prosecution," Trump said. "In a stronger period of time in our country, this crime would have been punishable by death."

Trump added: "In addition, reparations should be paid to those in our country who have been damaged by this."

Former chief investigator of the Trump-Russia probe for the House Intelligence Committee under then-Rep. Devin Nunes, R-Calif., Kash Patel, said the filing "definitively shows that the Hillary Clinton campaign directly funded and ordered its lawyers at Perkins Coie to orchestrate a criminal enterprise to fabricate a connection between President Trump and Russia." 

"Per Durham, this arrangement was put in motion in July of 2016, meaning the Hillary Clinton campaign and her lawyers masterminded the most intricate and coordinated conspiracy against Trump when he was both a candidate and later President of the United States while simultaneously perpetuating the bogus Steele Dossier hoax," Patel told Fox News, adding that the lawyers worked to "infiltrate" Trump Tower and White House servers. 

The anti-Trump dossier, authored by ex-British intelligence officer Christopher Steele, commissioned by opposition research firm Fusion GPS, was funded by the Democratic National Committee and Hillary Clinton's campaign through Elia's law firm, Perkins Coie. 

Patel added that Sussman relayed the "false narrative" to U.S. government agencies "in the hopes of having them launch investigations of President Trump." 

Sussmann's indictment is the second prosecution to come out of Durham's probe. 

Sussman pic: Perkins Coie

Sussman pic: Perkins Coie (Perkins Coie)

In 2020, Durham charged former FBI lawyer Kevin Clinesmith with making a false statement – the first criminal case arising from his probe. Clinesmith was referred for potential prosecution by the Justice Department's inspector general's office, which conducted its own review of the Russia investigation.

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

Former Attorney General Bill Barr appointed Durham, then the U.S. attorney from Connecticut, in 2019 to investigate the origins of the FBI’s original Russia probe, or Crossfire Hurricane, which began in July 2016, through the appointment of Special Counsel Robert Mueller in May 2017 shortly after Mueller completed his yearslong investigation into whether Trump's campaign colluded or coordinated with the Russians to influence the 2016 presidential election.

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

Barr, in December 2020, before leaving the Trump administration, tapped Durham as special counsel to continue his investigation through the Biden administration.

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In the scope order, Barr stated that Durham "is authorized to investigate whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counter-intelligence, or law-enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, III."

Under U.S. code, the special counsel would produce a "confidential report" and is ordered to "submit to the Attorney General a final report, and such interim reports as he deems appropriate in a form that will permit public dissemination."