“The latest pleading from Special Counsel Robert [sic] Durham 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. … In a stronger period of time in our country, this crime would have been punishable by death.”
— Former president Donald Trump, in a statement, Feb. 12
“I was proven right about the spying, and I will be proven right about 2020!”
— Trump, in a statement, Feb. 14
It’s not every day that a former president suggests that his political opponents should be executed. But ever since Trump in early 2017 falsely accused former president Barack Obama of spying on him, based on sketchy, anonymously sourced reports, he and his allies have sought to somehow make the claim come true. (Never mind that now the claim is against the Clinton campaign.)
The latest “evidence” comes via a court filing by special counsel John Durham, who was tasked by former attorney general William P. Barr to investigate the roots of the FBI counterintelligence investigation into the Trump campaign. Since being appointed special counsel 16 months ago, after a preliminary investigation lasting 17 months, Durham has filed two indictments. Every subsequent court filing is scrutinized carefully by right-leaning media, sometimes in misleading ways.
For instance, Fox News has reported that Durham alleged that Clinton’s “presidential campaign in 2016 had paid to ‘infiltrate’ servers belonging to Trump Tower and later the White House.” But the word “infiltrate,” even though it is in quotes, appears nowhere in Durham’s filing. Instead that word comes via Kash Patel, a former Trump administration official who offered his own spin on the document.
The Durham filing says much less than what Trump claims. Thus far, Durham has not charged anyone with spying on Trump. In fact, the statute of limitations has already expired for a key meeting cited in the filing.
Here’s a guide for the perplexed.
What’s this about?
In September, Durham charged Michael Sussmann, a former federal prosecutor with expertise in computer cases, with lying to the FBI during a meeting in 2016. The indictment alleged that he told the FBI he was not acting on behalf of clients when in fact, the indictment said, he was secretly acting on behalf of Clinton’s political team and others. Sussmann has pleaded not guilty, and his lawyers have denied he ever said he had no clients.
Why did Sussmann meet with the FBI?
On Sept. 19, 2016, Sussmann told James Baker, general counsel at the FBI, that cybersecurity researchers had found possible evidence of a secret communications channel between computer servers associated with the Trump Organization and with Alfa Bank, a Kremlin-linked financial institution. The researchers allegedly had been enlisted by someone identified in the indictment as Tech Executive-1 and was later revealed to be Rodney Joffe, an Internet entrepreneur who founded the world’s first commercial Internet hosting company. Joffe, who has not been charged, had hired Sussmann in February 2015 “in connection with a matter involving an agency of the U.S. government,” according to the indictment.
The FBI investigated Sussmann’s tip but concluded that it was not suspicious at all. The indictment said agents found that the computer in question “was not owned or operated by the Trump Organization, but, rather, had been administered by a mass marketing email company that sent advertisements for Trump hotels and hundreds of other clients.”
What is the connection to the Clinton campaign?
Sussmann worked for Perkins Coie, which was employed by the Clinton presidential campaign. The indictment claims that in Perkins Coie internal paperwork, Sussmann billed his time with Baker to the Clinton campaign. He also billed much of his time on the Alfa Bank matter to the Clinton campaign, according to the indictment. But Sussmann’s lawyers have said the billing records are misleading because the Clinton campaign received a flat retainer so the hours did not result in additional charges.
In a later filing in October, Durham appeared to acknowledge that he did not have evidence that Sussmann ever spoke directly to the Clinton campaign about Alfa Bank. Instead, he suggests that such communications took place via another Perkins Coie lawyer who was general counsel for the Clinton campaign. (At one point, for instance, the lawyer sent an email about the Alfa Bank matter to Clinton campaign officials, including current national security adviser Jake Sullivan.) A Durham spokesman declined to comment.
Why does this matter?
Trump and his allies have charged that the Clinton campaign ginned up allegations of connections between Trump and Russia in the months before the election, leading to negative news stories and improper federal investigations.
Multiple investigations have found clear evidence of the Russian government’s efforts to intervene in the 2016 election on the side of Donald Trump. But special counsel Robert S. Mueller III could not find evidence of a conspiracy between Trump and the Kremlin; he merely concluded that the campaign was opportunistic about apparent assistance from Russia.
Meanwhile, the Clinton campaign has been connected to negative media reports during the campaign about Trump and Russia. A former British intelligence agent, Christopher Steele, working under contract for a private investigation firm at the behest of Clinton’s campaign, actively pitched his findings to news reporters, even though his reports later turned out to be poorly sourced.
So far, there is no evidence that the Clinton campaign directly managed the Steele reporting or leaks about it to the media.
The alleged Alfa Bank connection was also pursued by reporters, though only one publication published an article before the election. The indictment of Sussmann says that he disseminated the Alfa Bank allegations to the media, even before he met with the FBI. The Clinton campaign tried to exploit the story, but it was pretty quickly dismissed and largely ignored.
Where does the ‘spying’ claim come from?
Durham on Feb. 11 asked the court to examine what he called were potential conflicts of interest regarding Sussmann’s counsel, Latham & Watkins. As part of that document, he took the opportunity to raise new allegations, though no new crimes were claimed.
One claim — the source of the “spying” allegation — is that Durham has evidence that Joffe and his associates “exploited” domain name system (DNS) Internet traffic at an unnamed health-care provider, Trump Tower, Trump’s Central Park West apartment building, and “the Executive Office of the President of the United States.”
DNS information shows what a person has been doing on the Internet, such as browsing activity. Companies and government offices use special-purpose DNS providers that might monitor for suspicious traffic or filter out potentially dangerous web addresses that include typos.
The indictment added that Joffe’s employer “had come to access and maintain dedicated servers for the EOP 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.”
The indictment does not make clear the circumstances of the White House contract, but Durham appears to be claiming the company kept track of the web addresses that Internet users at the White House were visiting. It is unclear whether such monitoring might have been part of the original contract. If so, that’s somewhat like hiring a security guard at the front gate to run a badge-scanning system, and then being shocked the security guard is keeping track of your comings and goings from the office. That’s not really the same as eavesdropping.
Moreover, contrary to much of the reporting in right-wing media, Durham does not specifically say the alleged monitoring of EOP took place while Trump was president — and the circumstances suggest it took place in 2016.
“The Special Counsel has again made a filing in this case that unnecessarily includes prejudicial — and false — allegations that are irrelevant to his Motion and to the charged offense, and are plainly intended to politicize this case, inflame media coverage, and taint the jury pool,” Sussmann’s lawyers charged in a response filed with the court Monday night that noted a number of reports that appeared in conservative media. The team, headed by Sean Berkowitz and Michael Bosworth of Latham & Watkins, requested that the court strike “factual background” of the Durham filing that made these allegations.
A spokesperson for Joffe also denied any nefarious intent in a statement to the Fact Checker.
“Contrary to the allegations in this recent filing, Mr. Joffe is an apolitical Internet security expert with decades of service to the U.S. Government who has never worked for a political party, and who legally provided access to DNS data obtained from a private client that separately was providing DNS services to the Executive Office of the President (EOP). Under the terms of the contract, the data could be accessed to identify and analyze any security breaches or threats,” the statement said. “As a result of the hacks of EOP and DNC [Democratic National Committee] servers in 2015 and 2016, respectively, there were serious and legitimate national security concerns about Russian attempts to infiltrate the 2016 election. Upon identifying DNS queries from Russian-made Yota phones in proximity to the Trump campaign and the EOP, respected cybersecurity researchers were deeply concerned about the anomalies they found in the data and prepared a report of their findings, which was subsequently shared with the CIA.”
In any case, Trump’s original claim in 2017 was that Obama had wiretapped him, not that web searches had been tracked by the Clinton campaign. Trump relied on a report by a British journalist that a “FISA [Foreign Intelligence Surveillance Act] warrant was granted in connection with the investigation of suspected activity between the server [in Trump Tower] and two banks, SVB Bank and Alfa Bank.”
The FBI did obtain a secret court order to monitor a former Trump campaign adviser, Carter Page. But as we noted, the FBI had quickly dismissed the Alfa Bank tip.
What else is new?
Durham mentions a meeting Sussmann had on Feb. 9, 2017, with “a second agency of the U.S. government,” previously identified in congressional testimony as the CIA. Durham alleges that Sussmann made new allegations against Trump, relying on the DNS traffic that had been collected, including that “Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House and other location.” Durham’s filing said that his office found “no support” for these claims.
What is noteworthy about the date is that the meeting took place after Trump had already assumed the presidency. But that may be less nefarious than it seems. Sussmann, in December 2017, had previously explained to congressional investigators that he had tried to set up the meeting during Obama’s review of Russian involvement in the election.
“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,” he said. He said he reported to the CIA “information that was reported to me [from a client] about possible contacts, covert or at least nonpublic, between Russian entities and various entities in the United States associated with the — or potentially associated with the Trump Organization.”
If Sussmann had planned to provide this material before Trump became president, that suggests any possible DNS monitoring took place in 2016 — as both the statement from Joffe’s spokesperson and the response from Sussmann’s legal team said.
“Although the special counsel implies that in Mr. Sussmann’s February 9, 2017 meeting, he provided [the CIA] with EOP data from after Mr. Trump took office, the special counsel is well aware that the data provided to [the CIA] pertained only to the period of time before Mr. Trump took office, when Barack Obama was President,” Sussmann’s legal team said in its filing. “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 [the CIA] happened well after the 2016 presidential election, at a time when the Clinton campaign had effectively ceased to exist.” The filing added that it is “false” that Sussmann billed the Clinton campaign for the September 2016 meeting with the FBI.
What is also noteworthy is that Durham raised this allegation in a filing dated Feb. 11. That means, as national security writer Marcy Wheeler first noted, the five-year statute of limitations for charging a crime in connection with the CIA meeting had expired two days earlier.
Update, Feb. 18: In a filing late Thursday, Durham distanced himself from the right-wing media furor in response to Sussmann’s demand that the court strike the “factual background” of the Durham filing: “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.” Durham confirmed the data collection in question took place in 2016, not under Trump, and he indicated he might make further filings under seal if, for instance, “the safety of individuals” could be threatened — an apparent reference to Trump’s statement calling for punishment by death.)
Send us facts to check by filling out this form
Sign up for the Fact Checker weekly newsletter
The Fact Checker is a verified signatory to the International Fact-Checking Network code of principles