Feb 15, 2022

The Durham news, explained.

The Durham news, explained.

What does the filing actually mean?

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 14 minutes.

We're breaking down the story around John Durham's latest filing, and why it has been making huge waves in conservative media.

Former President Trump is claiming the latest filing vindicates his claims of spying. Photo: Gage Skidmore
Former President Trump is claiming the latest filing vindicates his claims of spying. Photo: Gage Skidmore 

A new podcast.

Two weeks ago, I wrote a lot about Spotify, Joe Rogan, Whoopi Goldberg and some of the free speech and censorship issues of the day. Shortly after, I saw a post from Grace Lavery, a trans writer, about her decision to leave Substack because it was not properly enforcing its platform rules (namely, that it was allowing harassment of trans people on the platform). I sat down with Grace and had a fascinating conversation about free speech, censorship, and how to foster open debate and a commitment to free speech while also making platforms healthy environments for everyone. If you care about these issues I think you'll find it educational and thought-provoking. You can listen here.


Quick hits.

  1. Canadian Prime Minister Justin Trudeau has invoked emergency powers in an effort to cut off funding for demonstrators by freezing bank accounts, and bringing in federal police to quell the protests across the country. (The powers)
  2. The U.S. announced it was relocating its Ukrainian embassy from Kyiv to Western Ukraine. Russia said some troops will return to their bases, an indication it may engage further in de-escalation negotiations. (The move)
  3. A U.S. Navy engineer pleaded guilty to a charge that he tried to sell some of America's most closely guarded submarine secrets to a foreign country. (The plea)
  4. The Trump Organization's accounting firm Mazars USA cut its ties with the corporation and called into question the reliability of a decade's worth of financial statements. (The severance)
  5. A federal judge plans to dismiss Sarah Palin's libel lawsuit against The New York Times. (The dismissal)

Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.


Today's topic.

Late last week, something interesting happened: A news story began percolating in many conservative online spaces, but got very little attention in more "mainstream" sources like The New York Times or The Washington Post. It was, seemingly, ignored by many news outlets with more liberal writers on staff.

For conservatives reading conservative news outlets, the story was a certified bombshell: Trump was right, he had been spied on. Hillary Clinton's campaign may have had a role, and the mainstream media was continuing to ignore it. For liberals (especially those that reached out to me), there was more of a sense of confusion. What is the story? What happened? Why aren't more news outlets talking about it?

I got enough requests about it that I decided to give it the "explainer" treatment. This story is a bit complicated — and there are a lot of people involved — but I'm going to try to make it as simple as possible. Given the many intricacies, we won't be able to flesh out every single thread — but there are links throughout this piece you can follow for more information. I'm going to try to focus on what is most important to understanding where things are now.

First, a refresher: John Durham is the special counsel who was appointed by Bill Barr, the attorney general under former President Trump. Durham was appointed to investigate the investigations into Trump, and to determine if there was any foul play. In September, we covered Durham's indictment alleging that Michael Sussmann, a high-profile cybersecurity lawyer, lied to the FBI by telling them he was not representing a client but coming forward as a citizen. According to the indictment, he was representing the Clinton campaign and a technology executive. During the meeting, Sussmann presented the FBI with evidence that a server belonging to the Russia-based Alfa Bank appeared to be communicating with Trump organization computers.

The allegation he made about the ties between Trump and Alfa Bank was eventually proven false, and didn't appear in Robert Mueller's report, but the beginning of an FBI investigation into those ties was widely reported in the media and damaging to Trump’s image toward the end of the 2016 campaign. Sussmann was the second person charged by Durham. The first was Kevin Clinesmith, an FBI attorney who was charged with doctoring an email that was used to apply for surveillance of Carter Page, a former Trump campaign adviser. Clinesmith changed the email to say that Page was "not a source" for the Central Intelligence Agency, despite Page's cooperation with the CIA, so as to make his actions seem more suspicious and to justify further surveillance.

Then, in November, we covered Durham charging Russian-born Igor Danchenko with five counts of making false statements to the FBI about, among other things, the sources of information he fed to Christopher Steele (author of the now infamous Steele Dossier).

So, what is happening now? Last week, Durham made a legal filing in the case against Sussmann, the Democratic lawyer who allegedly lied to the FBI about his connection to the Clinton campaign. The filing was, mainly, related to purported conflicts of interest on Sussmann's legal team. But it included a rather striking section that accused Sussmann of working with Rodney Joffe, an executive at Neustar Inc., to gather internet data on Trump's communications. Specifically, Durham filed the following (Tech Executive-1 has been identified as Rodney Joffe):

The Government’s evidence at trial will also 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”). (Tech Executive-1’s employer, Internet Company-1, 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.)

Essentially, Durham is accusing Sussmann and Joffe of digging through DNS records and then taking those DNS records to government agencies in order to create an "inference" and "narrative" that Trump and his team were up to something nefarious. It's important to understand here that, according to the indictment, Joffe's employer was hired by the Trump White House and Trump campaign to monitor internet traffic related to Trump tower and Central Park West (there are security reasons to do this — such as keeping an eye out for phishing campaigns or ransomware attacks).

The claim is that Joffe used his position on this team to mine the data and that Sussmann was then presenting that data to federal agencies as "evidence" Trump was involved in some nefarious business with Russia. It is still unclear when, exactly, Sussmann and Joffe came into contact, or what their relationship was. Joffe hired Sussmann as outside counsel in February 2015 “in connection with a matter involving an agency of the U.S. government,” and Durham alleges that Joffe’s internet company was a major source of revenue for Sussmann and his firm.  Sussmann was a lawyer at Perkins Coie, a firm closely associated with Democrats, and Joffe was reportedly offered a post in the Clinton administration if she were to win the election. Marc Elias, the general counsel for Clinton’s presidential campaign, was also a lawyer at Perkins Coie. At some point in July of 2016, Joffe alerted Sussmann about the purported Alfa Bank-Trump server connections, according to Durham.

Trump responded to the indictment by saying, "I was proven right about the spying," and then suggested the actions should be "punishable by death." Fox News, The Wall Street Journal and many other conservative opinion makers have said the indictment proves Trump was spied on.

Joffe's spokesperson responded to the allegations. “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."

To briefly tie that all up: John Durham, the special counsel investigating the investigations into Trump, is alleging that the Trump-Russia narrative was driven, in part, by a government contractor (Joffe) who was passing along internet data to a Clinton team lawyer (Sussmann), who was then presenting that data to federal agencies in a way that would encourage them to investigate Trump, despite knowing that the allegations he was concocting from the data were unfounded.


Some opinions.

I think it's important to note that this story is definitely suffering from an imbalance of coverage — which I'll get to in "my take." But there is still enough commentary out there to share.

On the right, the indictment has been seen as pure vindication.

"Trump really was spied on," the Wall Street Journal editorial board said. “According to a Friday court filing, the 2016 Hillary Clinton campaign effort to compile dirt on Donald Trump reached into protected White House communications... Mr. Durham says Mr. Joffe’s 'goal' was to create an 'inference' and 'narrative' about Mr. Trump that would 'please certain ‘VIPs,’ referring to individuals at [Perkins Coie] and the Clinton Campaign.'

"The new shocker relates to the data Mr. Joffe and friends were mining. According to Friday’s filing, as early as July 2016 Mr. Joffe was 'exploit[ing]' his 'access to non-public and/or proprietary Internet data,' including 'Internet traffic pertaining to . . . the Executive Office of the President of the United States (EOP)'... White House communications are supposed to be secure, and the notion that any contractor—much less one with ties to a presidential campaign—could access them is alarming enough. The implication that the data was exploited for a political purpose is a scandal that requires investigation under oath."

Margot Cleveland said the former president was "framed."

"Enemies of Donald Trump surveilled the internet traffic at Trump Tower, at his New York City apartment building, and later at the executive office of the president of the United States, then fed disinformation about that traffic to intelligence agencies hoping to frame Trump as a Russia-connected stooge," she wrote. "According to the motion, Joffe did more than have his associates mine internet traffic at Trump Tower, Trump’s residential apartment building, and the executive office of the president of the United States—he gave that data to Sussmann, who provided it to the CIA during a February 9, 2017 meeting. During that meeting, Sussmann gave the CIA 'data which he claimed reflected purportedly suspicious DNS lookups by Trump Tower, Trump’s residential apartment building, the EOP, and a healthcare provider, of internet protocol or IP addresses affiliated with a Russian mobile phone provided.'"

The National Review editors called it "jaw-dropping."

"The information, Durham says, was taken out of context and distorted to suggest that Trump might be a clandestine agent of Vladimir Putin’s regime. Alarmingly, some of the Internet traffic mined in early 2017 was generated by the Executive Office of the President — the White House," the editors wrote. "In other words: He [Joffe] was spying on the president of the United States with the aim of harming his ability to govern the country.

"Joffe was a Clinton supporter who was hoping to land a big national-security post if Hillary Clinton were elected president in 2016," they added. "Joffe and the Clinton campaign got their lawyer, Michael Sussmann, to communicate this 'intelligence' about a corrupt Trump–Russia relationship to government intelligence agencies in the hopes that they would take action against Trump. Sussmann, a former Justice Department cyber-security prosecutor, was then a partner at Perkins Coie, the politically connected law firm that represented the Democratic Party and the Clinton campaign."


The skepticism.

Again, there hasn't been much commentary about this from the left (frankly, I think a lot of prominent left-of-center opinion writers have mostly ignored Durham’s probe). One of the few prominent responses came from The Washington Post's Philip Bump, who wrote a thorough breakdown of what just happened. Bump starts by conceding that the initial Trump-Alfa Bank story brought forward by Sussmann was bogus, then gives a timeline and explainer that we have covered above.

"It’s useful to note that Durham’s claim about data being 'exploited' emerged early," Bump wrote. “Both [journalists like Marcy] Wheeler and [Rob] Graham elevated questions about the ethics of digging through collected DNS records to investigate something that was probably outside of any agreement governing what the data was being collected for. But that doesn’t mean 1) that any laws were violated or 2) that this constitutes 'hacking.' If I give you a key to my house and you use it to come in and read my diary, I will certainly be angry with you, but it’s not like you committed burglary.

"Yet that’s how the [filing] has at times been conveyed. On Fox News, for example, a story about the Durham filing ran with the headline 'Clinton campaign paid to ‘infiltrate’ Trump Tower, White House servers to link Trump to Russia: Durham.' There are a few problems with this, including that the connection between Clinton’s team and the Perkins Coie Alfa Bank investigation is not direct, nor did Durham use the word 'infiltrate,' a word that suggests illicit access to data... Instead, both of those claims come not from Durham but, as the article makes clear, from former Trump staffer Kash Patel. It’s a statement from Patel that makes the Clinton claim and uses the word infiltrate. It’s Patel — whose recent career has often centered on backstopping Trump’s claims of being unfairly investigated — who drew the line that Fox is attributing to the special counsel."

Bump goes on to say there are "legitimate questions about the effort to link Trump back to Russia using this data that was not only sketchy at the outset, but had also been debunked by the time the election was over." But "there is no question that this is not proof that Trump Tower was 'wiretapped.' ... If it’s evidence of Trump being “spied on,” as the former president has also claimed in recent days, it’s a very broad sort of spying — collecting all of the domain-name lookups from a physical location or a network — being conducted not by the Obama administration or by Hillary Clinton, but by an anti-Trump lawyer."

The independent writer Marcy Wheeler said "John Durham has raised a potential conflict as a way to air his conspiracy theories so he can jack up the frothy right. In this case, he describes an uncharged meeting at which Michael Sussmann, who no longer had anything to do with the DNC, shared an updated version of the Alfa Bank allegations with the CIA on February 9, 2017." Wheeler also points out that "Thus far, Durham has made no claims about any orders coming from the Hillary Campaign... The filing in question even suggests Perkins Coie [who employed Sussmann] may be upset about what Sussmann is alleged to have done. 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."


My take.

I've been both disappointed and unsurprised by both the over-the-top leaps from conservative media and the relative silence from the "mainstream" media. This is not Watergate, but it's a big enough story that it should be addressed in the pages of The New York Times and The Washington Post. It took both of them days to report anything, and now they each have one story up that is focused on the right's reaction to the court filing, rather than the filing itself (The Washington Post added a second story, a fact-check, this morning).

There’s a lot of writing above making the case for why this story is such a bombshell, so I'm going to start by throwing a little cold water on that version of events. Then I'll tell you why this matters — or why it could, depending on where things go.

Many conservative media outlets have conflated the comments of former Trump staffer Kash Patel with those of John Durham, the special counsel. Durham has not charged anyone with conspiring to defraud the government or a court. He has not accused anyone of infiltrating anything. Joffe is, so far, not facing any criminal charges, and Sussmann and Danchenko have only been charged with lying to the FBI about who their sources were or who they were representing.

This seems important when the former president is suggesting someone be put to death. The newly revealed meeting between Sussmann and the FBI, which Durham referenced in the latest filing, is also now past the statute of limitations — meaning no new charges are coming related to that meeting. It's still unclear whether Sussmann believed what he was passing along to government agencies was valuable intelligence, but Durham clearly thinks he can prove in court that Sussmann was knowingly misleading them.

It's also important to note that everything Durham has done has an implication to it, namely that the FBI fell for the allegations presented by Sussmann and Joffe. So far nothing Sussmann or Joffe alleged to the FBI or CIA that we know about ended up turning into any real charges against Trump or his campaign. In other words, the FBI wasn't working to take down Trump as he and his allies have claimed, but they were apparently predisposed to believe the negative intel on Trump and were not sufficiently skeptical of it when it was brought to their attention. That distinction matters, and it should be clear that Durham is not charging otherwise (it’s also worth reiterating, again, that at least one FBI lawyer doctored an email in order to continue to surveil Trump’s campaign — which is a lot closer to “spying” than the allegations in this recent filing).

I think the idea that this filing is a smoking gun is still quite a reach. It raises far more questions than it answers. The Wall Street Journal's editorial board asked many of the same questions I'm curious about: How long did this snooping last and who had access to what was found? Who approved the access to the Trump servers, and who at the FBI and White House knew about it? Were Mrs. Clinton and senior campaign aides personally aware of this data-trawling operation? How did Sussmann and Joffe first come into contact? And how direct was their relationship in 2016?

But again: these are questions. Even if we are to take the indictments at face value, Danchenko and Sussmann have both pleaded not guilty and Durham is going to have to prove his case in court. It's not even certain (though I think it is likely) that Sussmann was working for the Clinton campaign. Sussmann worked for Perkins Coie, which was employed by the Clinton presidential campaign. The indictment claims Sussmann billed his time to the Clinton campaign, but Sussmann's lawyers are arguing in court that those records are misleading because the Clinton campaign had a flat retainer with Perkins Coie.

Durham himself has filed court paperwork acknowledging that he doesn't know with certainty that Sussmann ever spoke to the Clinton campaign about the allegations he brought to the FBI and CIA, only that another lawyer at Perkins Coie who was general counsel for the campaign once emailed them about the Alfa Bank allegations.

Again: Lots of questions.

With all of that out of the way, this still looks ugly. If I had to bet, I'd put my money on the winning version of the story becoming ‘D.C. is full of dirty political players going to the ends of the earth to destroy each other.’ Trump wasn't "wiretapped" or "spied on" by the Obama administration, and tracking DNS lookups is not "hacking," but Durham either believes he has the goods to suggest people around Trump, like Joffe, were actively trying to damage his campaign (and the presidency) or he’s acting politically himself to draw attention to the dirty politics in D.C.

I wrote in our last two posts about Durham that this has been a slow drip. I’ve covered this story three times because I believe it is critical to understanding what happened during the 2016 campaign, a year when the DNC actually did have its servers’ data and emails hacked (and leaked).

Durham has now been investigating this longer than the Mueller investigation lasted, and so far I'd classify what he's uncovered as some deeply shady politics and an inept (or at least gullible) intelligence apparatus, but Durham has yet to make any charges beyond that. That's not to say he won't, and I want to be careful about not getting out over my skis, but I'm certainly not ready to yell "vindication" on allegations this was all a well-coordinated, Hillary-Obama-FBI attempted takedown of Trump. Durham hasn’t alleged that yet, let alone proven it.

But he is tugging the strings on how deeply connected the Clinton campaign was to much of the obsessive coverage around purported Trump-Russia collusion. This is a big story, and it’s getting more interesting every day. If it ends here, I don’t think it’s the political scandal many are making it out to be. But if the investigation draws new charges — as some suggest it will — or unveils more damning evidence, we’ll certainly be ready to cover it.


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A story that matters.

Drying soils, dried up bodies of water and wildfires have plagued the American West over the last two decades. Now, in a new study, researchers claim that the last 22 years in the West now rank as the driest period of the last 1,200 years. Scientists say they’ve examined major droughts in North America dating back to the year 800 and that this latest spate has now surpassed the severity of a megadrought in the 1500s, and concluded that the conditions are likely to continue through the next year. They estimated that 42% of the drought’s severity is attributable to higher temperatures caused by greenhouse gasses accumulating in the atmosphere. The Los Angeles Times has the story.


Numbers.

  • 674 days. The length of Robert Mueller's investigation into Donald Trump's campaign and its ties to Russia.
  • 1,009 days. The length of John Durham's investigation into Robert Mueller's investigation, so far.
  • $32 million. The estimated cost of Robert Mueller's investigation, according to the Justice Department.
  • $3.8 million. The estimated cost of one 14 month span of Durham's investigation, according to a 2021 report.
  • 34 people. The number of people Mueller's prosecutors charged.
  • Three. The number of people Durham has indicted so far.

Have a nice day.

An Instacart driver in Georgia became a hero after following her instincts on a recent delivery. Jessica Higgs was dropping off food for a woman's elderly father when she decided to come inside rather than simply leave the bags on the porch. "Something was telling me, 'No, you've got to help this man out,'" Higgs said, explaining that the man at the door looked sick. When she came inside, she noticed a propane tank indoors, and then began to feel dizzy herself. She messaged the man's daughter to say she thought there might be a gas leak, and the next day Higgs received an update from the woman that her son had found a gas leak and Higgs's message "saved my dad and my younger son's life." The Independent has the story.


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