The Washington PostDemocracy Dies in Darkness

John Durham dumps a small bucket of water on the forest fire he sparked

The special counsel is just trying to find the guy who did this

The exterior of the White House is illuminated in celebration of the 2022 Beijing Olympics. (Sarah Silbiger/Reuters)

Over the course of the week, as responsible news outlets outlined the ways in which the right-wing narrative about spying on former president Donald Trump was misinformed and often unfounded, one refrain recurred.

It went something like this: Oh, so you’re saying that a court filing from special counsel John Durham, a long-standing federal official, can’t be trusted? After all, the idea that Trump was being surveilled even while he was in the White House derived from a document submitted to the court by Durham last Friday. Surely he knows better than some lowly journalist!

This was not tricky to rebut. What Durham submitted to the court was vague in its specifics, alleging that an attorney working for a law firm retained by Hillary Clinton’s 2016 campaign, Michael Sussman, had been involved with research trying to link Trump to Russia. That research led, among other things, to a meeting with a government agency (understood to be the CIA) in February 2017 and included data collected from White House networks. Those individual pieces were strung together into a claim that Clinton’s campaign spied on Trump’s White House. It’s right there in the document!

But it wasn’t, as a new filing from Durham makes clear both explicitly and implicitly.

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It is not overstating things to point out that the narrative above consumed right-wing media and networks this week. Night after night, Fox News hosted guests who somberly discussed this alleged spying on the sitting president. The idea permeated the network’s non-opinion programming, as well (recognizing the blurriness of that line). As the network cut away from a Hillary Clinton speech it was airing live on Thursday, the Fox anchor declared that she was speaking even as Durham “continues the investigation into whether or not her campaign was involved in an effort to listen in to President Trump or listen in to candidate Trump.” Just a shrugging and wildly inaccurate assertion about the campaign maybe “listening in” on the sitting president, offered as an aside. A connect-the-dots puzzle showing four points from which Fox News managed to sketch out a dragon.

And then along comes Durham to ruin the fun.

His office was responding to Sussman’s response to his initial filing from last week. (I know that’s confusing to read.) Durham understandably took issue with Sussman’s suggestion that the special counsel had intentionally intended to stoke political anger.

“[D]efense counsel has presumed the Government’s bad faith and asserts that the Special Counsel’s Office intentionally sought to politicize this case, inflame media coverage, and taint the jury pool,” Durham wrote. But, he added later, “[i]f 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.”

Setting aside the question of intent, let’s focus on the point here. Durham is stating, explicitly, that members of the media may have “overstated” and “misinterpreted” facts included in his filing. This isn’t me, Washington Post guy, saying that his filing sparked an inaccurate narrative. It’s Durham saying that this (might, perhaps, maybe) happened.

It’s important to point out what immediately preceded that “if.” Durham had mentioned that stuff about data from the White House being included in the Russia research because “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.”

To a layperson, that seems unremarkable. But, as Charlie Savage noted when writing for the New York Times, it is Durham validating reporting that indicated there was no research conducted on data collected from the Trump White House at all.

Durham’s initial filing mentioned data collected from the EOP and a February 2017 meeting in which research was discussed. This was interpreted as meaning that the data involved in the analysis included data collected during Trump’s presidency (which, of course, began in January of that year). Setting aside the limited scope of this data (there was no “listening in on”) and the authorization under which it was collected, the team at Georgia Tech that conducted the research denied that it included anything collected after 2016. And, here, Durham’s admitting that this was true.

The “member of the defense team” who was working for the executive office of the president is Michael Bosworth, who served as deputy White House counsel under Barack Obama. He was not still serving in the White House when Trump was president (perhaps obviously), but he was there “during relevant events that involved the EOP.” In other words, he was there during the period in which the relevant data collection from the EOP was occurring — meaning that the relevant data was being collected only when Obama was president!

This is just one thread of the colorful tapestry that Fox News and others on the right wove this week. For example, there’s no evidence in Durham’s filings showing that Clinton’s campaign drove this research. In fact, it seems as though it was instead driven by the technology executive whose firm had collected the pertinent data and who had retained Sussman for counsel before all of this began.

But it’s an important thread to pull. Durham is saying that the media probably overstated what was included in his filing as he clarified a particular thing that the media obviously got wrong. Whether Durham meant to start a forest fire (as Sussman argues), he started one. His new filing douses at least one small part of the conflagration.

Unless, of course, you don’t trust a court filing from John Durham, a long-standing federal official.

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