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Special Counsel John Durham claimed in a court filing on Friday that the CIA concluded that data from Clinton campaign attorney Michael Sussmann alleging coordination between Donald Trump and Russia was “not technically plausible” and had been “created by the user”.
In the filing, Durham responded to objections from Sussmann’s defense about what evidence might be admissible at Sussmann’s trial, which is due to begin next month. Sussmann is accused of lying to the FBI by saying he was not attending a meeting on behalf of a particular client when he was actually presenting the information on behalf of the Hillary Clinton campaign and an executive tech he was working with.
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Durham in February revealed for the first time that the government would establish during the trial that among the data “exploited” was domain name system (DNS) internet traffic relating to “a particular healthcare provider, Trump Tower, Donald Trump’s Central Park West apartment building and the Executive Office of the President of the United States (EOP).”
In February, Durham said the data was mined “by exploiting EOP DNS traffic and other data for the purpose of gathering derogatory information about Donald Trump”, adding that the data was used to establish “a inference” and a “narrative” linking Trump to Russia.
But Sussmann is preparing to exclude evidence regarding the “harvesting” of this “DNS data” by “Tech Executive 1”, who has been identified as Rodney Joffe, and his associates.
In Friday’s filing, Durham argued that the data collection is a “necessary factual backdrop to the conduct complained of.”
Durham’s original indictment alleges that Sussmann told then-FBI General Counsel James Baker in September 2016 – less than two months before the 2016 presidential election – that he was not working “for no client” when he requested and held a meeting where he presented “purported data and ‘white papers’ that allegedly demonstrated a secret communication channel” between the Trump Organization and Alfa Bank, which has ties to the Kremlin.
The indictment alleges that Sussmann lied at the meeting, “misrepresenting to the General Counsel that he was not providing the allegations to the FBI on behalf of a client.”
Sussmann pleaded not guilty and sought to have the case dismissed. The federal judge handling the case denied that request this week.
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Durham also alleges that Sussmann provided an “updated set of allegations” in February 2017, including the Alfa Bank allegations, and additional Trump-related allegations to a second US government agency, which Fox News has confirmed. it was the CIA.
In its Friday filing, Durham said the government expects to “present evidence at trial” that will reflect that the FBI and CIA “have concluded that the Russian Bank 1 allegations are false and unsubstantiated.”
“For example, while the FBI did not come to a definitive conclusion regarding the accuracy of the data or whether it could have been in whole or in part authentic, falsified, altered or fabricated, Agency 2 concluded at the beginning 2017 that Russian Bank Data 1 and Russian Phone Provider Data 1 were not “technically plausible”, “did not withstand technical scrutiny”, “contained gaps”, “were in conflict with [itself],’ and was “user-created and not machine/tool-generated,” Durham wrote.
However, Durham states that “the Office of Special Counsel has not come to a definitive conclusion in this regard”.
But Durham argued that “regardless of whether the data was not actually reliable or provided a motive” for Sussmann to lie, evidence regarding the steps taken by the FBI and CIA to “investigate these matters is critical to establish materiality”.
Durham said this information “will allow the jury to assess those steps, which, in turn, will inform their conclusions about whether the defendant’s alleged misrepresentation was material and might tend to influence or interfere with the duties.” of the government”.
Meanwhile, Durham describes Sussmann’s connection to the now infamous and discredited anti-Trump dossier, which contained allegations of alleged coordination between Trump and the Russian government.
The unverified dossier was written by former British intelligence agent Christopher Steele and commissioned by opposition research firm Fusion GPS. The Perkins Coie law firm is the firm through which the Democratic National Committee and the Clinton campaign funded the anti-Trump dossier.
In Durham’s filing on Friday, he revealed that Sussmann met Steele in the summer of 2016 at the offices of Perkins Coie, where he briefed Steele on the Alfa Bank allegations.
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Durham says that after their meeting, staff from the “American Investigative Society,” which Fox News previously reported is Fusion GPS, assigned Steele to “research and produce intelligence reports” on Alfa Bank, “what he did”.
Durham, in his filing, says Sussmann “represented and worked for the Clinton campaign as part of his broader opposition research efforts” and “took steps to incorporate ‘Alfa Bank allegations’ into these opposition research efforts”.
Durham argued that the evidence is “highly probative” because it establishes that Sussmann “represented and worked for the Clinton campaign along with his broader opposition research efforts.”
Durham also states that the evidence establishes that Sussmann “held his September 19, 2016 meeting with the FBI to, among other things, further the interests of the Clinton campaign with the assistance of” GPS Fusion.
In the filing, Durham also points to notes from a former deputy FBI director that state, among other things, that the “file author was hired” by Fusion GPS to “dig up dirt on Trump for an anonymous US client.” .
“The fact that FBI headquarters received on the same date both sets of information regarding the same political campaign (Clinton campaign), the same law firm [Perkins Coie] and the same investigation firm [Fusion GPS] makes Steele’s involvement in these cases relevant,” Durham wrote.
Meanwhile, Sussmann’s defense has filed a motion to grant immunity to Tech Executive 1, Rodney Joffe, who has not been charged with a crime.
In Durham’s filing, however, he reveals that Joffe is “a subject” of the investigation and has been since before Sussmann’s 2021 indictment. Durham says this was communicated with the lawyer of Joffe, and that there is still a subject, even a month short of trial.
Durham said the decision not to grant Joffe immunity was “entirely reasonable and consistent with Justice Department practices” given that he “played a critical leadership role in assembling and submission of the allegations at issue, and would therefore likely result in greater criminal exposure and potential culpability in the event that the government’s investigation reveals or confirms the commission of crimes other than the offense currently charged.”
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Durham, however, revealed that the only “government-immune” witness in Sussmann’s trial was “Researcher 2”, whose identity is unknown. This individual’s immunity began in July 2021, more than a month before Sussmann was charged.
Durham said the government immunized “Researcher 2” because “at least five other witnesses who conducted work related to the Russian Bank 1 allegations invoked their right not to self-incriminate.”
“The government therefore sought the immunity of Researcher 2 in order to uncover otherwise unavailable facts underlying the opposition research project that Tech Executive 1 and others conducted prior to the defendant’s encounter with the FBI. “, says Durham.
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In the filing, however, Durham also reveals that the government “intends to seek immunity at trial for an individual who was employed by the US investigative firm, Fusion GPS.
“But unlike Tech Executive 1, this individual is considered a ‘witness’ and not a ‘subject’ of the government investigation based on currently known facts,” Durham says.
Meanwhile, Durham says the government, during the trial, plans to offer redacted, unprivileged documents containing communications between Sussmann and Joffe and redacted billing records reflecting Sussmann’s work “on behalf of the Clinton campaign” and Joe.
Durham says prosecutors also plan to offer communications between Sussmann, Joffe and “Campaign Lawyer 1,” who sources say is Perkins Coie’s partner and Clinton attorney Marc Elias, as well as employees of GPS fusion.
Sussmann’s trial is due to begin on May 16.
Durham, since 2019, has been investigating the origins of the original FBI Russia Investigation, or Crossfire Hurricane, which began in July 2016 with the appointment of Special Counsel Robert Mueller in May 2017. It was shortly after Mueller completed his years-long investigation into whether Trump’s campaign colluded or coordinated with the Russians to influence the 2016 presidential election.
Mueller’s investigation found no evidence of illegal or criminal coordination between Trump or the Trump campaign and Russia in 2016.
Durham charged three people as part of its investigation: Sussmann in September 2021, Igor Danchenko in November 2021 and Kevin Clinesmith in August 2020.
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Danchenko was charged with making a false statement and is accused of lying to the FBI about the source of the information he provided to Christopher Steele for the anti-Trump case.
Kevin Clinesmith was also charged with making a false statement. Clinesmith had been referred for potential prosecution by the of the ministry of justice Office of the Inspector General, which conducted its own review of the Russia investigation.
Specifically, the inspector general accused Clinesmith, though not by name, of altering an email about Trump campaign aide Carter Page to say he was ‘not a source’. for another government agency. Page said he was a source for the CIA. The DOJ relied on that claim when it submitted a third and final renewal application in 2017 to listen to Page under the Foreign Intelligence Surveillance Act (FISA).
The Associated Press contributed to this report.