When Donald Trump’s attorney general appointed John Durham to investigate what Trump insisted was a deep-state conspiracy against him, a question hovered: What exactly was Durham thinking? Durham had a respectable résumé as a prosecutor in a career that did not seem to lead straight into a role as Trump’s Roy Cohn.
Was he simply accepting the role out of diligence and the understanding that, if he found no crimes, he could put Trump’s absurd charges to rest? Or — unlikely but possible — would he uncover real proof of a criminal conspiracy at the FBI to undermine Trump? Or had Durham undergone the same Fox News–induced brain melt that has turned figures like Barr, Giuliani, and many others into authoritarian conspiracy theorists?
In the wake of Durham’s first and perhaps only indictment, we can safely rule out the first two explanations.
Durham’s indictment does not even allege that the FBI committed any wrongdoing. Instead, it charges that the FBI was lied to — by Michael Sussmann, a lawyer who passed on leads about Trump’s ties to Russia that the bureau was unable to verify. Durham’s indictment claims Sussmann committed perjury by denying he was working for the Clinton campaign at the time he brought his information about Trump to the FBI in 2016.
The first weakness in the indictment is that even if every word Durham writes is true, the charge he has amounts to a very, very small molehill. Interested parties uncover crimes all the time. There’s just no reason to believe that Sussmann’s relationship with a law firm working for Clinton would have made any difference to the FBI — which was already investigating Trump’s ties to Russia and which wound up discarding Sussmann’s lead anyway as a dry hole.
Second, the evidence that Sussmann lied to the FBI is extremely shaky. As Benjamin Wittes notes, the sole basis for charging Sussmann with perjury is the recollection by FBI official Jim Baker. Baker testified to Congress that he remembered very little about his conversation with Sussmann, i.e.:
Baker: [I]n that first interaction, I don’t remember him specifically saying that he was acting on behalf of a particular client.
Jordan: Did you know at the time that he was representing the DNC in the Clinton campaign?
Baker: I can’t remember. I have learned that at some point. I don’t — as I think I said last time, I don’t specifically remember when I learned that. So I don’t know that I had that in my head when he showed up in my office. I just can’t remember.
Jordan: Did you learn that shortly thereafter if you didn’t know it at the time?
Baker: I wish I could give you a better answer. I just don’t remember.
Yes, the “Jordan” who dug out the evidence that seems likely to undermine Durham’s case is Trump superfan Jim Jordan. Wittes concludes, “It is hard for me to understand how a criminal case against Sussmann can proceed in the face of this testimony.”
The perjury charge is merely the window dressing in the indictment. The meat of it — the part that has Trump defenders excited — is a narrative laid out by Durham attempting to paint Sussmann and the experts he worked with as liars who smeared Trump. That narrative part does not describe actual crimes, of course. Prosecutors can write whatever they want in their indictment. This one is like a Sean Hannity monologue wrapped around a parking ticket.
And even the “speaking indictment” portion of Durham’s charge is falling apart now. Today, both CNN and the New York Times reported that Durham selectively quoted from emails in order to furnish a completely misleading impression that Sussmann’s researchers lied.
The story here is that a group of computer scientists discovered evidence of communication between a Russian bank server and a Trump property. The computer scientists suspected, but weren’t certain, the server might be used for some form of communication between Trump’s campaign and Russia. (The reason they suspected this, of course, was the broad swath of shady behavior Trump exhibited toward Russia.)
Durham’s indictment asserts that the computer scientists knew the data was innocent but sent it to the FBI anyway. What the Times and CNN reported today is that Durham supported this charge by clipping misleading segments of emails by the scientists when other emails undermined his accusation.
Durham’s indictment also portrays researchers working with [Rodney] Joffe as harboring doubts about whether the Trump-Alfa Bank information was anything other than innocuous email traffic. But the indictment cites snippets of sentences from emails, leaving out further discussion among the researchers that appears to show they firmly believed the Trump-Alfa Bank connection was suspicious and needed to be investigated.
The indictment cites one email conversation in which one of the researchers suggests narrowly tailoring their findings to make a “plausible” case that there was something worth investigating about Trump and Alfa Bank. The rest of the email — left out by prosecutors in the indictment — continues: “If the white paper intends to say that here are communications between at least Alfa and Trump which are intentionally being hidden by Alfa and Trump, I absolutely believe that is the case,” according to the email reviewed by CNN.
Elsewhere in the indictment, Durham quotes an email sent to Joffe and others involved in the effort, in which one of the researchers wrote, “Let’s for a moment think of the best case scenario, where we are able to show (somehow) that DNS communication exists between Trump and R[ussia]. How do we plan to defend against the criticism that this is not spoofed traffic we are observing? There is no answer to that” …
But additional emails reviewed by CNN appear to show that after expressing their skepticisms in late August 2016, the researchers expanded the scope of their research and believed they should show their findings to the FBI.
The Times has more examples of Durham taking messages out of context, such as:
The indictment quotes August emails from Ms. [April] Lorenzen and Mr. [Manos] Antonakakis worrying that they might not know if someone had faked the DNS data. But people familiar with the matter said the indictment omitted later discussion of reasons to doubt any attempt to spoof the overall pattern could go undetected.
The indictment says Mr. Joffe sent an email on Aug. 21 urging more research about Mr. Trump, which he stated could “give the base of a very useful narrative,” while also expressing a belief that the Trump server at issue was “a red herring” and they should ignore it because it had been used by the mass-marketing company.
The full email provides context: Mr. Trump had claimed he had no dealings in Russia and yet many links appeared to exist, Mr. Joffe noted, citing an article that discussed aspirations to build a Trump Tower in Moscow. Despite the “red herring” line, the same email also showed that Mr. Joffe nevertheless remained suspicious about Alfa Bank, proposing a deeper hunt in the data “for the anomalies that we believe exist.”
Whatever the truth is of the Alfa Bank matter — the Times reports that the computer scientists still don’t feel satisfied they know the answer — Durham’s case that the scientists knew they were lying is simply a preposterous smear.
Durham’s indictment of Sussmann seems extremely unlikely to result in a prosecution. The rest of it is a story about dishonesty. But the dishonesty lies on the part of Durham himself. His indictment proves only the willingness of many members of the right-wing legal Establishment to corruptly put their powers at the disposal of a liar.