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The Words ‘Infiltrate’ and ‘Spy’ Appear Exactly Zero Times in John Durham’s Recent Court Filing. Here’s What It Actually Says — and What It Doesn’t.

John Durham appears in a government portrait.

John Durham.

Dueling court filings have attracted considerable attention recently — especially among conservative media outlets — about the alleged inner workings of Hillary Clinton’s presidential campaign leading up to the 2016 election. The first missive, filed Friday by special counsel John H. Durham, led to claims by conservatives (such as Kash Patel on FOX News) and even by Donald Trump himself that liberal and Democratic figures were “infiltrating” or “spying” on his campaign. The Durham filing, however, does not directly make such a bald allegation, and the person against whom the filing was made has lashed back at many of the filing’s other factual assertions.

First, the background. Durham last September secured a single-count indictment against Michael Sussmann, a high-profile Perkins Coie cybersecurity lawyer who previously worked for the Hillary Clinton campaign and for the Democratic Party. Sussmann was accused of allegedly “mak[ing] a materially false, fictitious, and fraudulent statement or representation” before an Executive Branch agency, namely, the General Counsel of the FBI (who at the time was James Baker). The crime alleged is a purported violation of 18 U.S.C. §1001(a)(2). Sussmann has pleaded not guilty to the charge.

According to the original Durham indictment from last year, Sussmann said “he was not acting on behalf of any client in conveying particular allegations concerning a Presidential candidate, when in truth, and in fact, and as the defendant well knew, he was acting on behalf of specific clients, namely, Tech Executive-1 and the Clinton Campaign.”

What Durham’s Filing Said

The underlying single-count matter is proceeding through the courts. It led to a Friday filing by Durham’s team which at its core is a conflict of interest inquiry — not an accusation of “spying” and certainly not a charging instrument. Indeed, its title is as follows: “Government’s Motion to Inquire Into Potential Conflicts of Interest.”

The motion’s purpose was to suggest that the judge overseeing the Sussmann criminal case examine whether counsel from the law firm Latham & Watkins LLP, which represents Sussmann, may have a conflict of interest due to the other sprawling facets of Durham’s probe.

From the motion at length:

The Government has discussed these matters with the defense and believes that any potential conflicts likely could be addressed with a knowing and voluntary waiver by the defendant upon consultation with conflict-free counsel as appropriate. The Government believes that any such waiver should be put on the record prior to trial. As set forth in further detail below, it is possible that conflicts of interest could arise from the fact that Latham and/or its employees (i) previously represented others in the Special Counsel’s investigation whose interests may conflict with those of the defendant, (ii) previously represented the defendant and his prior employer in connection with events that likely will be relevant at trial or at any sentencing, and (iii) maintained professional and/or personal relationships with individuals who could be witnesses in these proceedings. Accordingly, for the reasons set forth below, the government respectfully requests that the Court inquire into the potential conflicts of interest set forth herein.

The Durham filing continued:

As set forth in the Indictment, on Sept. 19, 2016 – less than two months before the 2016 U.S. Presidential election – the defendant, a lawyer at a large international law firm (“Law Firm-1”) that was then serving as counsel to the Clinton Campaign, met with the FBI General Counsel at FBI Headquarters in Washington, D.C. The defendant provided the FBI General Counsel with purported data and “white papers” that allegedly demonstrated a covert communications channel between the Trump Organization and a Russia-based bank (“Russian Bank-1”). The Indictment alleges that the defendant lied in that meeting, falsely stating to the General Counsel that he was not providing the allegations to the FBI on behalf of any client. In fact, the defendant had assembled and conveyed the allegations to the FBI on behalf of at least two specific clients, including (i) a technology executive (“Tech Executive-1”) at a U.S.-based Internet company (“Internet Company- 1”), and (ii) the Clinton Campaign.

The bank was identified as Russia’s Alfa Bank by ABC News. The network also reported that the Alfa Bank connection was “later investigated by the FBI but determined not to be nefarious.”

The Durham filing then went on:

The defendant’s billing records reflect that the defendant repeatedly billed the Clinton Campaign for his work on the [Alfa Bank] allegations. In compiling and disseminating these allegations, the defendant and Tech Executive-1 also had met and communicated with another law partner at Law Firm-1 who was then serving as General Counsel to the Clinton Campaign (“Campaign Lawyer-1”).

The Friday filing further asserted that the aforementioned tech executive “worked with” Sussmann and Perkins Coie on behalf of the Clinton Campaign and “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 continues. “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. 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.”

The tech executive has been identified as Rodney Joffe.

Again, from the Durham filing:

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.)

The Indictment further details that on February 9, 2017, the defendant provided an updated set of allegations – including the [Alfa Bank] data and additional allegations relating to Trump – to a second agency of the U.S. government (“Agency-2”). The Government’s evidence at trial will establish that these additional 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 his meeting with Agency-2, the defendant 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 (“Russian Phone Provider-1”). The defendant further claimed that these lookups demonstrated that Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House and other locations. The Special Counsel’s Office has identified no support for these allegations. Indeed, more complete DNS data that the Special Counsel’s Office obtained from a company that assisted Tech Executive-1 in assembling these allegations reflects that such DNS 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-Provider-1 IP addresses that originated with U.S.-based IP addresses. Fewer than 1,000 of these lookups originated with IP addresses affiliated with Trump Tower. In addition, the more complete data assembled by Tech Executive-1 and his associates reflected that DNS lookups involving the EOP and Russian Phone Provider-1 began at least as early 2014 (i.e., during the Obama administration and years before Trump took office) – another fact which the allegations omitted.

What Durham’s Filing Didn’t Say

The factual insinuations led to a number of allegations of malfeasance by Democrats, particularly among Republicans and supporters of Trump. Trump himself jumped into the fray by dispatching a number of statements which suggested that the allegations amounted to “spying.” According to one of those Trump statements:

The latest pleading from Special Counsel Robert 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. 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. In a stronger period of time in our country, this crime would have been punishable by death. In addition, reparations should be paid to those in our country who have been damaged by this.

Trump noticeably referred to Durham as “Robert Durham.” The special counsel’s name is John H. Durham. Trump didn’t even correctly identify the person about whom he was presumably talking. Therefore, the rest of the missive from POTUS 45 technically references something and someone who doesn’t actually exist — unless there’s a Robert Durham out there who just happens to be a duly appointed special counsel who is investigating this very same matter.

In any event, let’s assume Trump was attempting to talk about John Durham. Despite the application of the words “spy,” “spying,” “infiltrate,” or “infiltration” by Trump or FOX News guests to describe the allegations made in Durham’s filings, those words do not appear anywhere in the filing itself. Rather, the filing itself asserts that the aforementioned tech executive “exploited” data after having “worked with” Sussmann, with “a U.S. investigative firm retained by” his law firm “on behalf of the Clinton Campaign,” with “numerous cyber researchers,” and with “employees at multiple Internet companies to assemble the purported data and white papers.”

While some might blur the line between “spying” and “exploit[ing] . . . access to non-public and/or proprietary Internet data,” the distinction is, based on what we know right now, critical. Durham has not alleged a violation of the Computer Fraud and Abuse Act (CFAA), the Stored Communications Act (SCA), the Electronic Communications Privacy Act (ECPA), or the Defend Trade Secrets Act (DTSA) — all of which are major sources of law as to the prosecutions of federal computer crimes.

Broadly speaking, the CFAA criminalizes “knowingly access[ing] a computer without authorization or exceeding authorized access.” That might be something akin to “infiltrating” a system, but Durham’s Friday filing hasn’t alleged that, and it is unclear whether level of “access” the alleged exploiter was legally allowed to have to the alleged “non-public and/or proprietary” data.

The SCA deals with the disclosure of online communications — but it has many exceptions. Plus, the nature of “communications” can be legally quite narrow. (Remember: the government can look at phone numbers but cannot tap actual telephone calls without a warrant, and the government’s mail carriers can read addresses but not open envelopes or read mail. Phone numbers, addresses, and data a user has transmitted or “communicated to the system in order to make it work for him” has long been legally deemed to have been voluntarily injected into the public sphere; in other words, it isn’t secret.) Durham’s filing is somewhat unclear on the precise nature of the data but seems to tacitly suggest it might fall within the permissible bounds — perhaps, and perhaps just barely.

ABC News reached attorneys for one of the researches involved with the data who asserted this principle:

Jody Westby and Mark Rasch, attorneys for David Dagon, a Georgia Institute of Technology analyst who was part of the research team referenced in Durham’s filing, told ABC News that the team only provided data that was legally obtained during the Obama administration. Westby and Rasch said researchers were looking at attempted malware attacks that were believed to be targeting the White House, and that contrary to Durham’s allegations, Joffe was never “tasking” the researchers in their work.

“What you don’t want to have happen, which we already see happening, is for researchers to be chilled in bringing concerns about cybersecurity threats to appropriate government agencies,” they said. “And right now, the cybersecurity community is largely afraid to talk to law enforcement because of what has happened and how this case has been handled.”

Yahoo News reported similarly about the underlying technology at play.  Citing an interview with Dmitri Alperovitch, the “co-founder and former chief technology officer of the cybersecurity firm CrowdStrike,” Yahoo noted that the data referenced by Durham might “rais[e] some potentially troubling questions about the use of nonpublic government data for political purposes.”  However, Yahoo concluded that the Durham filing ultimately “does little to support Trump’s claim that his allegations of spying have been vindicated.”

According to Yahoo, Alperovitch “said that the information Sussmann and Joffe were trying to mine from the servers was not the kind of content you would normally associate with spying.”

“[Domain-name system] traffic is not content,”Alperovitch asserted, according to the report.  “It’s just basically the internet’s address book.”

“You can’t see content by just looking at DNS traffic,” the report continued, this time paraphrasing Alperovitch.  “[Y]ou can see which websites were being accessed and which servers they were communicating with.”

The quite-possibly-completely-legal conduct referenced in the Durham filing has nonetheless led to considerable consternation on Sean Hannity’s FOX News opinion program by both presidential son Eric Trump and by Hannity himself about the dearth of prosecutions surrounding the data referenced.  Such hand-wringing and partisan bloviating is misplaced.  Even if the conduct was illegal, the statute of limitations on federal computer crimes is a problem for any attempts to litigate the matter now.  The default federal criminal statute of limitations is five years, and that default limit applies to many computer offenses — as the Department of Justice itself notes in its own computer crimes manual. Under that standard, conduct which occurred in 2016 cannot be prosecuted in 2022 unless an exception applies. One exception is a case where evidence exists in a foreign country and where an investigative grand jury has been empaneled in the United States to sort through it. A court would have to approve a request to override the statute of limitations. The standard federal civil statute of limitations is two years. In other words, even if something illegal happened, it would be difficult or impossible to prosecute by pure operation of law.

To be clear, the filing does not directly state or even facially allege that any of the proffered conduct surrounding the data itself was illegal. What it directly alleges — again — is that Sussmann lied about the identity of his client when he forwarded information in his possession to federal authorities. It also directly asks that Latham & Watkins needs to be subjected to ethics scrutiny. The reason for the Durham filing is not to litigate the underlying legality of the alleged data exploitation or even to suggest that Latham & Watkins did anything wrong. Rather, it is to ensure that Durham’s prosecution of Sussmann is legally sound based on Sussmann’s constitutional right to attorneys who don’t have alleged ethics conflicts.

The alleged facts make up less than half of Durham’s 13-page filing. Most of the document is devoted to the question of whether Sussmann’s representation by Latham & Watkins can proceed given Latham & Watkins’ purported representation of others connected to Durham’s probe, including, according to the document, Perkins Coie itself. Notably, per Durham’s filing, Sussmann recently resigned from that firm and could end up taking legal positions that are adversarial to his now-former employer — posing a possible issue for Latham & Watkins under attorney ethics rules.

Moreover, according to the Durham filing:

Based on its review of documents in its investigation and other information, the Special Counsel’s Office also has learned that one of the members of the defendant’s current defense team (“Defense Team Member-1”) previously worked as Special Counsel to the then-FBI Director from 2013 to 2014. In connection with that work, Defense Team Member-1 developed professional and/or personal relationships with several individuals who later were involved with and/or knowledgeable of the FBI’s investigation of the Russian Bank-1 allegations. For example, Defense Team Member-1 appears to have developed a professional relationship with the former FBI General Counsel to whom the defendant made his alleged false statement and who will likely be a central witness at trial. While it is unlikely that these past interactions and activities will give rise to an actual conflict of interest, the Government respectfully requests in an abundance of caution that the Court inquire with the defense concerning whether Defense Team Member-1’s relationships with persons and entities who might be witnesses in this case could give rise to a potential conflict or appearance issue and, if so, whether the defendant waives any such conflict.

How Sussmann’s Lawyers Responded

Sussmann’s attorneys filed documents late Monday in response to the Durham filing from Friday. Those documents took aim at a decision by Durham’s team to lodge several pages of factual narratives into a filing that at its core is an ethics inquiry.

“Counsel for Mr. Sussmann previously advised the Special Counsel [Durham] that Mr. Sussmann has been fully apprised of the issues that the Special Counsel sought to raise; he [Sussman] understood his right to consult independent counsel; and he intended to waive any potential conflicts of interest,” a Sussmann filing reads.

In other words, a lawyer says he doesn’t want to consult with independent lawyers about whether he desires to proceed with his current lawyers.

The first Sussmann filing almost immediately pilloried Durham after making that immediate clarification as to the underlying and more legally prominent ethics matter:

Unfortunately, the Special Counsel has done more than simply file a document identifying potential conflicts of interest. Rather, 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.

The Sussmann pile-on continued (emphasis in original):

Approximately half of this Factual Background provocatively—and misleadingly—describes for the first time Domain Name System (“DNS”) traffic potentially associated with former President Donald Trump, including data at the Executive Office of the President (“EOP”), that was allegedly presented to Agency-2 in February 2017. These allegations were not included in the Indictment; these allegations post-date the single false statement that was charged in the Indictment; and these allegations were not necessary to identify any of the potential conflicts of interest with which the Motion is putatively concerned. Why then include them? The question answers itself.

A footnote then explained Sussmann’s concerns with some of Durham’s “facts”:

For example, although the Special Counsel implies that in Mr. Sussmann’s February 9, 2017 meeting, he provided Agency-2 with EOP data from after Mr. Trump took office, the Special Counsel is well aware that the data provided to Agency-2 pertained only to the period of time before Mr. Trump took office, when Barack Obama was President. 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 Agency-2 happened well after the 2016 presidential election, at a time when the Clinton Campaign had effectively ceased to exist. Unsurprisingly, the Motion also omits any mention of the fact that Mr. Sussmann never billed the Clinton Campaign for the work associated with the February 9, 2017 meeting, nor could he have (because there was no Clinton Campaign). And the Special Counsel persists in alleging that Mr. Sussmann billed the Clinton Campaign for his meeting with the FBI in September 2016, when that is false as well.

The Sussmann filing continued by citing various FOX News, New York Post, Washington Examiner, Breitbart, and other reports which allegedly mischaracterized the Friday filing by Durham:

Sadly, the Special Counsel seems to be succeeding in his effort to instigate unfair and prejudicial media coverage of Mr. Sussmann’s case. Indeed, since the Motion was filed, numerous outlets published stories suggesting that the Special Counsel’s latest filing revealed a vast conspiracy involving Mr. Sussmann and the Clinton Campaign.

Sussmann’s attorneys then criticized Trump’s decision to strawman the Durham filing into something worse than it actually was. They then pointed to the paucity of charges against Sussmann and the current dearth of charges against others — a fact which Sussman’s attorneys said was telling:

And this is not the first time in this case that the Special Counsel has sought to include allegations about uncharged conduct in public filings and done so using inflammatory and prejudicial rhetoric. Take, for example, the very Indictment that the Special Counsel filed in this single-count, false statement case. The Indictment is 27 pages long and reads as though there was a vast conspiracy, involving the Clinton Campaign and Mr. Sussmann, to defraud the FBI into investigating Donald Trump as part of an “October surprise.” But the Indictment does not charge anyone other than Mr. Sussmann; the Indictment does not charge a conspiracy; and the Indictment does not even charge a fraud.

Sussmann’s attorneys are asking a federal judge to “the Factual Background portion of the Special Counsel’s motion pursuant to the Court’s inherent power to ‘fashion an appropriate sanction for conduct which abuses the judicial process.'” They’re also asking for extended voir dire to flush out any jurors affected by this and myriad other factual insinuations by Durham’s team.

Read the dueling filings from Durham and Sussmann below in their entirety:

Editor’s note: some legal citations have been omitted from quotations. The full citations are contained within the embedded documents.  This report has also been updated with additional insight.  

[Durham portrait via the US DOJ]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.