Durham Motion Explains: Sussmann Peddled Purported Trump–Russia Phone Records from Trump Transition Period in Late 2016

Special Counsel John Durham reports that Internet communications records from the Executive Office of the President (EOP — essentially, the White House), which Democratic lawyer Michael Sussmann conveyed to the CIA in early 2017, included data that, according to Sussmann, tied then-president-elect Donald Trump to a Russian-made phone — and, derivatively, indicated that Trump might have a back-channel for covert communications with the Kremlin. The records were said by Sussmann to be from December 2016.

Durham proffered this information to a federal court in Washington, D.C., in a motion to admit evidence the prosecutor intends to offer at Sussmann’s criminal trial, which is scheduled to begin in mid May. Based on Durham’s probe into the origins of the discredited Trump–Russia “collusion” narrative, a grand jury indicted Sussmann on one count of making false statements to the FBI.

Sussmann allegedly told the FBI that he was not working for any client in bringing the Bureau what he portrayed as evidence of a Trump–Russia backchannel. The indictment alleges that this was a lie, told to conceal the fact that Sussmann was actually working for the Clinton campaign and another client, tech executive Rodney Joffe — the main source of the Internet records, who is said to have been hoping to land a top government cybersecurity job if Clinton were elected.

The Washington Examiner’s Jerry Dunleavy has a report on the prosecutor’s latest disclosure, embedding Durham’s court submission.

The revelation about EOP records is notable in light of the hue and cry from the Sussmann camp a couple of months ago. That is when Durham revealed, in another court submission, that Sussmann had peddled Internet traffic records — known as DNS (Domain Name System) data — that were derived from White House servers. Sussmann apologists claimed that Sussmann could not conceivably have tried to smear Trump with EOP Internet records drawn from 2014 into 2017 because Obama, not Trump, was president during that period. Therefore, critics contended, Durham must have been floating misinformation in an effort to prejudice the jury pool against Sussmann.

As I observed at the time, this was a mendacious contention. Trump won the election in November 2016 and, after a period of transition, took office on January 21, 2017; Sussmann’s meeting with the CIA to transmit the information cobbled together under Joffe’s direction happened on February 17, 2017. Therefore, it was obvious that there could have been White House records pertaining to Trump communications toward the end of the time frame, from 2014 through early 2017, covered in the EOP records.

Moreover, Durham filed that prior motion, not because he was trying to influence the jury pool, but because federal precedent required him to raise with the court the nature and scope of potential conflicts of interest that beset defense counsel. (Sussmann’s lawyers have represented other subjects and potential witnesses in the investigation.) Most significantly, Durham was up front, explicitly informing the court that the vast majority of the records from 2014 to 2017 pertain to the Obama White House, not Trump. Durham would have no reason to hide the ball on that because it helps his case: Such evidence, the prosecution explained, shows that what Sussmann was portraying as unusual and suspicious patterns of communication was anything but. (Never mind that the judge to whom Durham was making his argument obviously knows Obama was president for most of the three relevant years.)

There is more to say about what we’re learning from the pretrial litigation. For now, suffice it to say that Durham has homed in on Sussmann’s claims about Trump’s supposed use of a “YotaPhone” — basically, a Russian-made mobile phone.

I recounted in the aforementioned column that the Sussmann camp and its media apologists were highlighting the YotaPhone in pushing against Durham’s disclosure by intimating that these records were Obama records, not records Sussmann and his collaborators could have distorted to fabricate a Trump-Russia connection:

The Russian phones are known as YotaPhones. I know that because I read the New York Times, particularly reporting by Charlie Savage, the Times’ best reporter on things cyber. That is why I’m surprised by Savage’s intimation that the “data” to which Durham referred — which Savage suggests means all of the DNS logs addressed in the prosecutor’s motion — “came from Barack Obama’s presidency.” The Times report quotes a pair of lawyers who represent a data scientist “who helped develop the Yota analysis.” They maintain that the data being analyzed was “nonprivate DNS data from before Trump took office.”

I noted at the time that this could be a misleading assertion because the lawyers had slipped in a caveat: “To our knowledge” the data were pre-Trump. The Times reporting told us neither how complete their “knowledge” was nor why the lawyers felt the need to add that caveat.

Which brings us to Jerry Dunleavy’s reporting today. As he explains, Sussmann’s February 17, 2017, meeting with the CIA generated a memorandum, in which

the CIA said Sussmann told them his contacts had gathered information “indicating that a Russian-made Yota phone had been seen by them connecting to WiFi from the Trump Tower in New York, as well as from a location in Michigan, at the same time that then-candidate Trump was believed to be at these locations” and that “the Yota phone was seen connecting to WiFi from the Executive Office of the President (the White House)” in December 2016. [Emphasis added.]

As Jerry elaborates:

The special counsel revealed Friday that the CIA concluded in early 2017 that the Alfa Bank and YotaPhone information was not “technically plausible,” was “user created,” “contained gaps,” and “conflicted with [itself].”

I will have more to say over the weekend about that disclosure. Of all Durham’s revelations, it has garnered the most public attention in recent days, particularly among Trump supporters. For now, I would just note that last week, in another court submission that discussed the CIA’s conclusion that the DNS data proffered by Sussmann was bogus, Durham took pains to posit two qualifications that have not gotten as much attention. First, the FBI did not reach a definitive conclusion about the DNS data that Sussmann brought to the Bureau in September 2016 — although the Bureau did conclude that there was nothing to the claim that Trump and the Russian regime were using Alfa Bank as a communication back-channel. Second, to quote Durham, “the Special Counsel’s Office has not reached a definitive conclusion” (emphasis in original) about the data Sussmann provided to the FBI and CIA.