On September 16, 2021, Durham indicted
Michael Sussmann, a partner for the law firm
Perkins Coie, alleging he falsely told FBI general counsel
James Baker during a September 2016 meeting that he was not representing a client for their discussion. Durham alleged Sussmann was actually representing "a U.S. Technology Industry Executive, a U.S. Internet Company and the Hillary Clinton Presidential Campaign." Sussmann focuses on privacy and cybersecurity law and had approached Baker to discuss what he and others believed to be suspicious communications between computer servers at the Russian
Alfa-Bank and
the Trump Organization. Sussmann had represented the
Democratic National Committee regarding the
Russian hacking of its computer network. Sussmann's attorneys have denied he was representing the Clinton campaign. Perkins Coie represented the Clinton presidential campaign, and one of its partners,
Marc Elias, commissioned
Fusion GPS to conduct
opposition research on Trump, which led to the production of the Steele dossier. Sussmann, a former federal prosecutor, characterized the allegations against him as politically motivated and pleaded not guilty the day after his indictment. As with the charge against Clinesmith, the charge against Sussmann was unrelated to the FBI investigation into the myriad During a 2018 congressional deposition, Baker stated, "I don't remember [Sussmann] specifically saying that he was acting on behalf of a particular client," though the Durham investigation found handwritten notes taken by assistant director of the
FBI Counterintelligence Division Bill Priestap which paraphrase Baker telling him after the meeting that Sussmann "said not doing this for any client." The notes also say "Represents DNC, Clinton Foundation, etc.," though they did not say Sussmann told Baker this during the meeting; Baker had also said during his deposition that he was generally familiar with Sussmann's work, as they were friends. The Priestap notes constitute
hearsay and it was not clear if they would be admissible in court as evidence under the
hearsay rule.
The New York Times reported Durham had records showing Sussmann had billed the Clinton campaign for certain hours he spent working on the Alfa-Bank matter. His attorneys said he did so because he needed to demonstrate internally that he was engaged in billable work, though the work involved consulting with Elias, and the campaign paid a flat monthly fee to Perkins Coie but was not actually charged for those billed hours. A Durham prosecutor later asserted that subsequent to his 2019 and 2020 interviews, Baker "affirmed and then re-affirmed his now-clear recollection of the defendant's false statement" after refreshing his memory with contemporaneous or near-contemporaneous notes. In a February 2022 court motion related to Sussmann's prosecution, Durham alleged that Sussmann associate
Rodney Joffe and his associates had "exploited" capabilities his company had through a pending cybersecurity contract with the
Executive Office of the President (EOP) to
acquire nonpublic government
Domain Name System (DNS) and other data traffic "for the purpose of gathering derogatory information about Donald Trump." Joffe was not charged and his attorney did not immediately comment. After Sussmann's September 2021 indictment,
The New York Times reported that in addition to analyzing suspicious communications involving a Trump server, Sussmann and analysts he worked with became aware of data from a
YotaPhonea Russian-made smartphone rarely used in the United Statesthat had accessed networks serving the White House, Trump Tower and a Michigan hospital company,
Spectrum Health. Like the Alfa-Bank server, a Spectrum Health server also communicated with the Trump Organization server. Sussmann notified CIA counterintelligence of the findings in February 2017, but it was not known if they were investigated. Durham alleged in his February 2022 court motion that Sussmann had claimed his information "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," but Durham said he found no evidence to support that. Sussmann's attorneys responded that Durham knew Sussmann had not made such a claim to the CIA. Durham alleged Sussmann's data showed a Russian phone provider connection involving the EOP "during the Obama administration and years before Trump took office." Attorneys for an analyst who examined the YotaPhone data said researchers were investigating
malware in the White House; a spokesman for Joffe said his client had lawful access under a contract to
analyze White House DNS data for potential security threats. The spokesman asserted Joffe's work was in response to hacks of the EOP in 2015 and of the
DNC in 2016, as well as YotaPhone queries in proximity to the EOP and the Trump campaign, that raised "serious and legitimate national security concerns about Russian attempts to infiltrate the 2016 election" that was shared with the CIA. Durham asserted that Sussmann bringing his information to the CIA was part of a broader effort to raise the intelligence community's suspicions of Trump's connections to Russia shortly after he took office. Durham did not allege that any eavesdropping of Trump communications content occurred, nor did he assert the Clinton campaign was involved or that the alleged DNS monitoring activity was unlawful or occurred after Trump took office. Durham's filing triggered a furor among right-wing media outlets, including misinformation about what Durham had alleged, which was challenged by other outlets and lawyers for the involved parties.
Fox News falsely reported that Durham claimed Hillary Clinton's campaign had paid a technology company to "infiltrate" White House and Trump Tower servers; that narrative actually came from Trump ally
Kash Patel. The
Washington Examiner claimed that this all meant there had been spying on Trump's White House office.
Charlie Savage of
The New York Times disputed these claims and explained that "Mr. Durham's filing never used the word 'infiltrate.' And it never claimed that Mr. Joffe's company was being paid by the Clinton campaign." Durham objected to a motion by Sussmann's attorneys to have the "factual background" section struck from Durham's motion, stating that "If 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." Hillary Clinton responded to the right-wing media attacks by hinting at
defamation: "It's funny the more trouble Trump gets into the wilder the charges and conspiracy theories about me seem to get.
Fox leads the charge with accusations against me, counting on their audience to fall for it again. As an aside, they're getting awfully close to
actual malice in their attacks." Sussmann's attorneys also explained, "Although the Special Counsel implies that in Mr. Sussmann's February 9, 2017 meeting, he provided Agency-2 with (Executive Office of the President) 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," During a March 2022 court hearing, presiding judge
Casey Cooper remarked that Durham's February motion relating to Joffe created a "dustup" that "strikes me as a sideshow in many respects," adding "I don't know why the information is in there." He said the motion, which was ostensibly about a potential
conflict of interest matter, could have been quickly resolved in a brief hearing. Cooper then asked Sussmann if he would waive the conflict of interest issue, which Sussmann did, leading Cooper to say, "I didn't need any of that ancillary information to do that." Cooper declined to strike the ancillary information as Sussmann's attorneys had requested, saying he would not ascribe any motives to Durham's motion. In an April 2022 flurry of late-night court filings by the prosecution and defense prior to the trial beginning the next month, Durham presented a text message Sussmann sent to Baker the night before their meeting which read, "I'm coming on my ownnot on behalf of a client or companywant to help the bureau," which appeared to support Durham's allegation that Sussmann had lied to investigators.
The New York Times reported that Durham's filings suggested he might introduce at trial the
Steele dossier in an effort to suggest a broader conspiracy between Sussmann and the Clinton campaign. Durham's indictment did not mention the dossier, and Sussmann's attorneys argued Durham "should not be permitted to turn Mr. Sussmann's trial on a narrow false statement charge into a circus full of sideshows that will only fuel partisan fervor." Durham argued that Sussmann's team should not be allowed at trial to suggest any political motivation behind the prosecution. Sussmann's attorneys asked judge Cooper to dismiss the case if Joffe were not granted immunity to provide "critical exculpatory testimony" for Sussmann. Nine days before the trial, Cooper ruled Durham could not present an argument to the jury that Sussmann was part of a broad "joint venture" involving the Clinton campaign,
Fusion GPS, Democratic operatives and various technology researchers. Cooper said allowing such an argument would amount to a "time-consuming and largely unnecessary mini-trial," considering Sussmann had been narrowly charged with lying to investigators rather than conspiracy. Cooper ruled prosecutors could question witnesses about the scope of the DNS analysis, but would not be allowed to introduce evidence that Joffe allegedly had doubts about the accuracy of some of the data. The judge said he was unlikely to allow evidence Joffe may have breached the terms of his employer's government contract, saying it was "at best, only marginally probative of [Sussmann's] supposed motive to lie to the FBI." Cooper did not grant Joffe immunity for his testimony, but said the limits he placed on Durham's lines of questioning might ease his concerns that Joffe could incriminate himself if he were to testify. Sussmann was
acquitted on May 31, 2022.
The New York Times reported in January 2023 that two prosecutors on Durham's team had argued to him that the evidence against Sussmann was too thin to pursue charges, and that an acquittal would undermine public faith in Durham's investigation and law enforcement. After Durham pursued the prosecution, one of the prosecutors resigned in protest while another left for another job. Durham's prosecution allowed him to make public large amounts of information insinuating involvement of the Hillary Clinton campaign that were not related to Sussman's prosecution on narrow charges. After the Sussmann prosecution failed, Barr stated it "accomplished something far more important" because it "crystallized the central role played by the Hillary campaign in launching as a dirty trick the whole Russiagate collusion narrative and fanning the flames of it." == Alfa-Bank investigation ==