“This is a case of extraordinary overreach,” wrote Sussmann’s attorneys. “The law only criminalizes misrepresentations that are material — misrepresentations that matter because they may in fact affect a specific government decision.”
A spokesperson for Durham – appointed in 2019 to review the FBI’s investigation into possible links between the Trump campaign and Russia – declined to comment.
Motions to dismiss are quite common in criminal cases and defendants must meet a high legal bar. But legal analysts said almost from the time Sussmann was indicted in September that the case could be difficult for prosecutors.
Durham will likely respond to the motion before the judge rules.
Thursday’s motion follows resentful exchange between special counsel and Sussmann’s defense team on recent filings in the case. Trump and some of his political allies said a Durham file indicated Democrats spied on the White House while Trump was president. Sussmann, others involved in collecting the information at issue and outside analysts said the interpretation was flawed, saying in particular that the information they passed on to the government predated Trump taking office.
At the heart of Sussmann’s indictment is a September 2016 meeting in which he provided the FBI with data showing potentially nefarious computer connections between the Trump Organization, which is the business entity of the former president, and a Russian financial institution known as Alfa Bank. According to Durham’s account, Sussmann claimed he was not sharing the information on behalf of any clients, but was in fact acting in the name of two: a tech executive and Hillary Clinton’s campaign. The FBI investigated the case but ultimately could not prove that the computer data showed anything nefarious.
Sussmann pleaded not guilty.
Durham’s indictment suggested Sussmann knew the data he was presenting showed no nefarious ties between Trump and Russia, and was intentionally concealing that he was working for the Clinton campaign. But Sussmann’s lawyers argued that the fact that Sussmann was hiding his ties to Clinton was irrelevant.
“Ultimately, Hillary Clinton herself could have publicly handed over the Bank-1 Russian information and the FBI would have investigated it anyway,” Sussmann’s lawyers argued. Their motion also said blaming tipsters who hide their true motives could have a chilling effect, citing the hypothetical example of a “ditched ex-wife” who might “think twice before reporting the vast arms smuggling operation of her ex-husband”.
Durham’s team said that if Sussman had been entirely truthful, the FBI might have been able “to more fully assess and uncover the origins of the relevant technical data and analysis.”
The motion to dismiss comes about a week after Durham raised new allegations about Sussmann in a court filing said to ask a judge to investigate possible conflicts of interest. The dossier inflamed fury from conservatives and drew recriminations from Sussmann’s team.
This added some detail to Durham’s previous allegations, largely focused on the computer links that Sussmann and those working with him examined between Trump-linked and Russia-linked entities. These purported links came from the Domain Name System, or DNS, a kind of digital telephone directory that associates domain names – which are usually words – with Internet addresses, which are numbers. DNS records would show when one computer was communicating with another, maybe because someone visited a particular website or sent an email.
Durham prosecutors alleged that the technology manager involved in the case “exploited” DNS traffic relating to a healthcare provider, Trump Tower, Trump’s Central Park West apartment building and, more specifically, the executive office of the president, or EOP. And they alleged that the tech leader’s company had “came to access and maintain dedicated servers for EOP as part of a sensitive agreement whereby it provided DNS resolution services to EOP.”
Durham alleged that on February 9, 2017, Sussmann passed DNS data to a government agency, saying it reflected suspicious connections to a Russian telephone company. People familiar with the case identified the agency as the CIA and the phone provider as YotaPhone, although no entity is named in the filing.
“Defendant further asserted that this research demonstrated that Trump and/or his associates were using allegedly rare Russian-made wireless phones near the White House and other locations,” the Durham team wrote. “The Office of Special Counsel has not identified any evidence to support these allegations.”
Sussmann’s legal team and others involved in the data review strongly disputes Durham’s account. In a Monday filing, Sussmann’s team wrote that the special counsel was unnecessarily including new allegations in a motion about possible conflicts “to further politicize this case, inflame media coverage and taint the jury.” And they said some of his insinuations were wrong.
In particular, they noted that the information Sussmann gave to the CIA “only related to the period before Mr. Trump took office, when Barack Obama was president.” This would appear to refute the idea that researchers were maliciously gathering Trump’s data while he was in the Oval Office.
Trump and other Republicans, however, were already citing Durham’s allegation as evidence of a grand conspiracy. The former president called it “bigger than Watergate”, suggesting that those involved should be executed and that “reparations should be paid to those in our country who have been damaged by it”.
“Can you imagine if the tables were turned and Republicans, especially President Donald Trump, got caught illegally spying on the President’s office? Trump said in a statement. “All hell would break loose and the electric chair would immediately come out of retirement.”
Those pushing back against Durham’s claims include a spokesman for Rodney Joffe, a retired tech executive who has not been charged in the case but, according to people familiar with the investigation, is the executive described in the indictment as Sussman’s client.
“Contrary to allegations…Mr. Joffe is an apolitical internet security expert with decades of US government service who has never worked for a political party and who legally provided access to DNS data obtained from a private customer who separately provided DNS services to the Executive Office of the President (EOP),” the spokesperson said in a statement.
“Following the hacks of the EOP and DNC servers in 2015 and 2016, respectively, there were serious and legitimate national security concerns regarding Russian attempts to infiltrate the 2016 elections,” the statement continued. “After identifying DNS queries from Russian-made Yota phones in close proximity to the Trump campaign and EOP, respected cybersecurity researchers were deeply concerned about the anomalies they found in the data and prepared a report. their findings, which was later shared with the CIA.
Lawyers for one of the researchers involved in the effort — David Dagon of Georgia Tech — also said Durham’s description of events was misleading.
“The idea that these researchers were using some kind of internal data to spy on Donald Trump – internal EOP data – to spy on Donald Trump, is just plain nonsense,” attorney Mark Rasch said. “This was non-EOP internal DNS data, and the collection of this data ended before the Trump administration was sworn in.”
Attorney Jody Westby said researchers began looking at the data in the summer of 2016 in response to Russia’s DNC hack. They focused on Trump-related traffic, Westby said, “because he said he had no connection to Russia,” and that doesn’t appear to be the case.
Sussmann is one of three people to have been charged or pleaded guilty in the Durham investigation.