Beyond the blockbuster news from Friday’s special counsel filing in the Spygate investigation, there were several additional interesting points of note, especially when the motion is read against information previously known. Here are eight assorted such items.
1. Was Joffe Using a Pretext to Surveil Trump?
In the motion, the special counsel’s office stressed that Rodney Joffe’s internet company “had come to access and maintain dedicated servers for the EOP [Executive Office of the President of the United States] as part of a sensitive arrangement whereby it provided DNS resolution services to the EOP.”
This fact proves fascinating when read against the Michael Sussmann indictment that explained why Joffe had provided the Georgia Tech researchers access to the data. It was purportedly “to allow them to establish ‘proof of concept’ for work they were seeking to perform under a government contract, which was eventually awarded in November 2016.”
But that the EOP servers were “dedicated servers” suggests the need for Georgia Tech researchers to perform a “proof of concept” analysis served as a pretext for Joffe to target Trump because the EOP would seemingly be a completely separate database that Joffe would need to provide access to, in addition to the other databases that surely could satisfy the needs for a proof-of-concept analysis.
2. Joffe Could Have Been Surveiling Even More
Friday’s filing also connects to the revelation exposed two weeks ago when Special Counsel John Durham’s team filed a “discovery update.” In that court filing, the special counsel’s office explained it had recently learned that Sussmann had met with the inspector general of the Department of Justice in early 2017, on behalf of Joffe.
During that circa March 2017 meeting, the discovery update explained, Sussmann provided the Office of Inspector General a “forensic report” that supposedly showed that Joffe “had observed that a specific OIG employee’s computer was ‘seen publicly’ in ‘Internet traffic’ and was connecting to a Virtual Private Network in a foreign country.”
Given Friday’s revelation that Joffe was specifically targeting the EOP during the Trump administration and mining internet traffic, Joffe’s supposed “observation” of an OIG’s computer connecting to a foreign country’s VPN suggests Joffe surveillance extended beyond the Executive Office of the President of the United States.
3. Did Other Intel People Attend Sussmann’s Meeting?
A third detail from earlier filings also takes on a new significance when read against Friday’s motion and the now-public details about Sussmann’s meeting with the CIA concerning his claims that Trump or his associates were using “supposedly rare, Russian-made wireless phones in the vicinity of the White House and other locations.” That meeting took place on February 9, 2017. According to the discovery update, Sussmann had informed the special counsel’s office that he believes there were additional government employees at the February 9, 2017 meeting beyond those noted in the discovery previously provided to Sussmann’s legal team.
Durham then explained in the discovery update that his team has since undertaken “additional steps to determine if additional personnel were, in fact, present at this meeting with [CIA] employees – evidence of which the Government has not identified to date.”
While Sussmann’s memory could be flawed, it also could be that the CIA had additional agents present or other intelligence agency employees attended the meeting but failed to inform Durham of that fact. If so, it wouldn’t be the first time information was withheld from Durham.
The special counsel’s motion also provided some additional details that, as of now, seem minor, but nonetheless worth noting. Many of those details came in the motion when the special counsel identified several areas that potentially created conflicts of interest regarding Latham and Watkins LLP’s current representation of Sussmann.
4. Focused on the Clinton Lawyers
Of interest first is the fact that since at least July 2020, Durham’s team has been interested in Sussmann, his former law partner, Marc Elias, and their former firm, Perkins Coie. Durham made this point clear in noting that Latham represented all three clients from July 2020 through approximately July 2021 and, “as part of its representation, Latham communicated and met with the Special Counsel’s Office and other DOJ officials on behalf of each of these clients.”
5. Who Knew What and When . . . and According to Whom?
Another intriguing insight the motion provided came when the government explained why Latham’s representation of the three separate clients might result in conflicts of interest. Here, the motion began by noting that Joffe had allegedly “conferred and consulted with both [Sussmann and Elias] on multiple occasions in connection with the [Alfa Bank] allegations.”
Given that fact, Durham explained that some of the factual issues likely to arise will be whether Sussmann “did or did not” tell Elias and Perkins Coie “that he was billing work on the [Alfa Bank] allegations to the Clinton Campaign,” and whether Sussmann “did or did not” receive instructions “regarding his billing of the Clinton Campaign and his meeting with the FBI General Counsel.”
Durham also noted he expected trial testimony to explore Sussmann’s “potential motives to mislead the FBI concerning whether he was working with or on behalf of the Clinton Campaign,” Elias, and Joffe. The conflict, here, the special counsel explained, in lawyerly prose, was that “in each of these areas, the defendant’s interests may diverge” from Elias and Perkins Coie’s interests and his “factual accounts might differ.” Further, Latham “likely possess confidential knowledge about [Perkins Coie’s] role in, and views concerning, [Sussmann’s] past activities.”
In other words, at trial we may hear two (or more) different stories of who knew what, when, and why, and who did what, when, and why as the various players seek to exonerate themselves and avoid blame—and legal culpability. In fact, in Friday’s motion Durham notes that Perkins Coie has denied knowing that Sussmann met with Baker on behalf of the Hillary Clinton campaign and Democratic National Committee at the time they drafted media releases in October 2018 saying the same.
6. The Clinton Campaign Is Front and Center
Durham’s motion also indicates the special counsel’s office has zeroed in on both the Clinton campaign and the DNC—branded “Political Organization-1” in the documents—as part of its investigation. Potential conflicts of interest arise, Durham’s motion explained, because one of Latham’s clients, Perkins Coie, was in turn representing both the Clinton campaign and the DNC.
Interestingly, though, according to the motion, Perkins Coie served as counsel for the Clinton campaign and the DNC related to the special counsel’s investigation only from May 2021 until approximately July 2021. With the attorney-client relationship related to Durham’s probe spanning such a short period, one must wonder whether the parties quickly realized their interests were at odds.
Friday’s motion also confirmed that the special counsel had obtained documents from the Clinton campaign and DNC, as another basis for the claimed conflict was that the government may seek to offer as “evidence at trial” materials obtained from the Clinton campaign and Perkins Coie.
7. More Hints of More Charges
Durham’s discussion of the potential conflicts also contained a passage raising anew the question of whether the special counsel’s office has more charges waiting for Sussmann. Specifically, in discussing why Latham may have a conflict of interest, Durham noted that Latham acted as the attorney for both Sussmann and Perkins Coie when Sussmann testified in December 2017 at the House Permanent Subcommittee on Intelligence.
“At numerous times during [Sussmann’s] testimony,” the special counsel explained, “attorneys from Latham interjected to clarify and/or address issues relating to attorney-client privilege and other topics.” Further, during that testimony, Sussmann admitted that he brought the Alfa Bank allegations to Baker on behalf of a specific client, namely Joffe, although Sussman did not identify Joffe by name at that time.
Significantly, though, according to Durham, Sussmann did not also tell the House committee that he was working on behalf of the Clinton campaign. The special counsel then added that it “may seek to establish that the defendant’s Congressional testimony itself was knowingly and intentionally misleading insofar as it failed to disclose that the defendant billed work on the [Alfa] Bank allegations to the Clinton Campaign.”
It is unclear from the motion whether Durham is suggesting he would seek additional charges for Sussmann’s allegedly intentionally misleading the congressional committee, but the special counsel has previously made clear that its investigation of Sussmann is not over. And the statute of limitations for such criminal charges will not run until this December on the five-year anniversary of Sussmann’s congressional testimony, giving Durham more leeway than he had in the case of Sussmann’s allegedly false statements to Baker, which needed to be filed in September 2021 or be barred by the statute of limitations.
8. The Swamp Is So Swampy
Durham’s filing also highlighted the revolving door that exists between the D.C. proletariat and government employment. “One of the Latham attorneys who represented the defendant [from July 2020 through July 2021] is now serving at the U.S. Department of Justice,” the motion noted at one point. That attorney had previously appeared with Sussmann when he appeared before the House Permanent Subcommittee on Intelligence.
In Friday’s motion, the special counsel’s office also noted that it has learned that one of Sussmann’s current defense attorneys previously worked as special counsel to the then-FBI director under the Obama administration and then later served as a lawyer in the EOP.
In those roles, Sussmann’s defense attorney “appears to have developed a professional relationship” with Baker and others who may serve as witnesses to the case. While those relationships do not prevent Sussmann’s attorney from representing him, Durham’s motion asked the court to ensure any waiver by Sussmann is knowing and voluntary.
According to the government’s motion, Sussmann has indicated that he intends to waive all of the above conflicts. The question, then, is whether the court believes further inquiry on these conflicts is necessary before accepting such a waiver. If so, the public might just get an even better glance into the ongoing, leak-free special counsel probe.