Media Vapors: How Special Counsel John Durham Has Triggered a Media Meltdown

Pediatricians call it “breath-holding spells.” It was when children hold their breath when upset until they experience syncope, or passing out. The media in Washington appears close to a collective faint over the recent filings of Special Counsel John Durham. While the media has largely buried or downplayed the disclosures by Durham on the origins of the Russian conspiracy claims, Durham keeps adding new details implicating top Democratic figures in what he describes as an ongoing investigation. You can only hold your breath so long and Durham shows no signs that he is done by a long shot.

The latest disclosures by Durham are difficult for many in the media to cover because they directly refute years of prior coverage. Many in the media lampooned Donald Trump for claiming that the FBI and the Clinton campaign spied on Trump Tower and his campaign. Yet, we later learned that the FBI did spy on the campaign. In 2020, the media largely ignored that finding.

That is when the first stage of syncope began:  the “prodrome” with signs of media “discomfort, extreme fatigue, weakness, yawning, nausea, dizziness, and vertigo.

Now, Durham has told a court that he has evidence that Clinton operatives  “exploited” access to systems at the Trump Tower, Trump’s apartment building, and “the Executive Office of the President of the United States.” While Durham does not use the term “spying,” he states that the operation allegedly targeted the campaign and the Trump Tower as well as the Executive Office in acquiring Domain Name System (DNS) data that can reveal server contacts and searches.

We are now in the second syncopal phrase: loss of media consciousness.

There is no way to cover this story without many admitting that it facilitated a false narrative created by the Clinton campaign, including attacking those who suggested that the Clinton campaign would ever engage in such disreputable conduct.

The case itself remains a single false statement (much like some of the charges brought by Special Counsel Robert Mueller). It is not an easy case to prove. However, the details emerging in the case are filling in gaps on how the Clinton Campaign’s funded and directed the development of the now debunked narrative of a conspiracy between Russian and the Trump campaign. What is also notable in the filing is the extent to which the Clinton campaign used lawyers to carry out this work, including hiding its funding while denying connections to the work of figures like Christopher Steele.

The new information was revealed in a filing raising conflicts of interest in the law firm of Latham Watkins, which is representing indicted former Clinton lawyer Michael Sussmann. The firm has represented other Clinton related figures. It was a fitting objection in a case where a circle of Democratic lawyers and law firms have featured prominently as well as the liberal think tank, Brookings Institution.  The cross pollination of these law firms is one of the least discussed elements in the scandal.

The Durham filings repeatedly return to the work of Perkins Coie, a firm with a long and deep connection to the Democratic Party. The Clinton campaign reportedly used a screen of lawyers to hide that it was behind the Russian conspiracy claims.

The key to many of these operations is someone referred to by Durham as “Campaign Lawyer-1,” who is widely believed to the then Perkins partner and Clinton Campaign General Counsel Marc Elias. Elias was called before the grand jury. It was Elias who made the key funding available to Fusion GPS, which in turn enlisted Steele to produce his now discredited dossier on Trump and his campaign. The firm listed the payouts as “legal fees.”

During the campaign, a few reporters did ask how the possible connection to the campaign, but Clinton campaign officials denied any involvement. It was only weeks after the election that journalists discovered that the Clinton campaign allegedly hid payments for the Steele dossier as “legal fees” among the $5.6 million paid to Perkins Coie. New York Times reporter Ken Vogel said at the time that Elias denied involvement in the anti-Trump dossier. When Vogel tried to report the story, he said, Elias “pushed back vigorously, saying ‘You (or your sources) are wrong.’” Times reporter Maggie Haberman declared, “Folks involved in funding this lied about it, and with sanctimony, for a year.” Elias also reportedly sat next to campaign chair John Podesta when he also reportedly denied the connection.

Sussmann was indicted for allegedly hiding his representation of the Clinton Campaign as he spread a different Russian collusion allegation involving the Trump Organization and Russia’s Alfa Bank. (Elias is also referenced in meetings on that operation). Sussmann filed a response this week and asked the Court to strike the entirety of the factual section of the Durham filing as unsubstantiated and sensational. (That could open the door for Durham in response to substantiate these claims even further).

Durham added details showing how Perkins Coie used its attorney-client relationships to further the Russian conspiracy operation for the campaign. He alleges that Elias and Sussmann enlisted an Internet executive, Rodney Joffe, to help build the foundation for the claims. Joffe alerted Sussmann about the Alfa Bank claims by July 2016, and “over the ensuing weeks, and as part of their lawyer-client relationship,” Sussmann and Joffe “engaged in efforts with Campaign Lawyer-1 .”

The use of lawyers to shield such work is nothing new in Washington. During the Nixon Administration, lawyers were used extensively to maintain slush funds and enable “dirty trick” operations.

What is striking about the Durham filings is the audacity of the Perkins Coie operation. While the funding was buried away, the lawyers were seemingly unconcerned about approving such efforts or personally reaching out to sympathetic government and media figures. They were, to some degree, justified in their sense of immunity.

Indeed, to this day, many refuse to cover extensive evidence of how the Clinton campaign manufactured this story that largely occupied the entire term of President Donald Trump.  Before the Steele dossier was given to the FBI and the press, then-CIA Director John Brennan briefed former President Obama on Clinton’s alleged “plan” to tie candidate Trump to Russia as “a means of distracting the public from her use of a private email server.” That operation appears to have been launched through Elias and Perkins Coie.

After the 2020 election, Democratic members and legal experts demanded the disbarring of a host of Republican attorneys for their spreading disinformation of a widespread election fraud. These same figures, however, are entirely silent about the role of Clinton lawyers in secretly funding the debunked Russian collusion claims. There is no interest in whether, as alleged by reporters, figures like Elias lied about the involvement of the Clinton campaign.

Sussmann is now facing a trial on his allegedly false statement. Elias remains unindicted. With little sense of irony, he has established a law firm to deal with ethics and campaign disclosures.

Durham’s continued investigation may be pushing the media to  the final stage called “postsyncope,” which involves “protracted confusion, disorientation, nausea, dizziness, and a general sense of poor health.” That has reflected in the flailing effort by some to deflect from the alarming disclosures. New York Times reporter Mike McIntire seemed to express alarm that the Durham story was “trending.”  However, McIntire offered “a periodic reminder that Trump’s campaign chairman secretly met and shared info with a Russian intelligence agent.” The “info” was polling data on the campaign that Paul Manafort gave a person with Russian intelligence ties.

That, of course, has no relevance to the question of whether the Clinton Campaign spied on the Trump Tower, campaign, or the White House itself. The “periodic reminder” seemed to be to other media that they needed to continue to hold their breath and not recognize a major story. Such “protracted confusion” is natural, but it will not dissipate any time soon. Durham apparently is calling more people into the grand jury.

[Note: the original column said that Sussman “hired” Joffe. It was changed to “enlisted” because there is no confirmation that he was actually paid for this work. Joffe reportedly said that he was promised a top job in a Clinton Administration and he was previously a client at Perkins Coie.]

496 thoughts on “Media Vapors: How Special Counsel John Durham Has Triggered a Media Meltdown”

  1. I am new to this fascinating blog. I just read over Defendant Sussmann’s Motion to Dismiss the indictment for Failure to State an Offense and Memorandum in Support (Doc. 39; 02/17/2022), along with his Cross-Motion to Strike (Doc. 36). and have three questions for which comment is invited.

    (Q1) Argument B(2) at page 17 or 29 of the Motion to Dismiss asserts: “Indeed the Indictment does not make a single allegation that the Russian Bank-1 Information he conveyed to the FBI was false.” Is this accurate if the Indictment is read as whole (and should the Indictment be read as whole for the purpose of evaluating the truth of this quoted assertion)? I have two specific sets of allegations contained in the Indictment in mind.

    First, (1) doesn’t the Indictment at at paragraph 27(d) and (e) allege (also, cf. paragraph 2?), that the content of the tip maintained the existence of a Trump-connected server used in suspect communications with the Russian Bank; and (2) doesn’t paragraph 7 assert that “the server at issue” did not exist for the use contained in the tip? Reading these paragraphs together, is that enough to alert the court that the Indictment is asserting that that part of Sussman’s tip to the FBI was false?

    Second, don’t the allegations of the Indictment (i) at paragraph 23(h), ” ‘faking the other company’s email address in each form’ and thereby cause them ‘to appear to communicate with each other in DNS.'”; (ii) at 23(j), “‘a red herring,’ noting that the host for that domain ‘is a legitimate valid [customer relationship management] company.’ “; and (iii) at 23(k), “How do we plan to defend against the criticism that this is not spoofed [] traffic we are observing? There is no answer to that.” when read against paragraph 27(d), (“in communication with Russian Bank-1), constitute an implied allegation of false content of the tip?

    (Q2) The last paragraph of Argument B(2) at page 22 argues that the “FBI would [not “might”] still have investigated” the content of the tip even if Hillary Clinton herself publicly handed it over or if the FBI read it in a published newspaper article. That seems to raise an issue of fact, does it not?
    Is it “would have” (as argued by the motion) or “would not have” or “might not have”? In support of Sussmann’s “would have” formulation (seemingly akin to a civil summary judgment effort attempting to show no genuine issue of material fact), footnote 10 of the motion cites to the Congressional question posed to Mr. Baker: “should that information somehow be discounted or considered less credible because of ,you know, partisan affiliation?” The motion seems to assume that Baker definitely or clearly answered that question in the negative. But did he? Is that a fair reading of his answer (or, perhaps, non-answer)? Moreover, doesn’t Indictment paragraph

    (Q3) The last sentence of footnote 1 of the Cross Motion to Strike (Doc. 36 at page 2) states: “4. And the Special Counsel persists in alleging that Mr. Sussmann billed the Clinton Campaign for his meeting with the FBI in September 2016, when that is false as well.” But isn’t that the subject matter of Indictment, paragraph 29? What am I missing here? Can a motion to strike or other legal memorandum be properly used by defense counsel to dispute a fact alleged by the Indictment?

    1. IANAL, but a 18 U.S.C. § 1001(a)(2) charge involves “knowingly and willfully … mak[ing] any materially false, fictitious, or fraudulent statement or representation” to the government, including to the FBI. In prosecuting this, it is not sufficient to show that a statement was false. The government must also show that the person knew it to be false (that the false statement was “knowingly and willfully” made) and that it’s materially false. Sussman’s lawyers have said that he didn’t make a false statement, but that even if he did, it’s not materially false (the FBI would have investigated regardless), so the indictment should be dismissed for lack of materiality.

      Re: Q1 –
      Paragraph 27(d) says that Sussman relayed an allegation. If someone says “experts A, B, and C allege X,” that statement is true as long as persons A, B, and C do allege X, even if X itself turns out to be false.

      Re: Q2 –
      As for “the “FBI would [not “might”] still have investigated” the content of the tip even if Hillary Clinton herself publicly handed it over or if the FBI read it in a published newspaper article,” yes, the FBI would investigate this kind of allegation even if they’d heard it from Clinton or a newspaper. It’s part of their job to investigate these kinds of allegations.

      Re: Q3 –
      Yes, Durham claims that Sussman billed the Clinton Campaign for this, and Sussman’s lawyers are claiming that’s false. I don’t know whether a motion to dismiss can “be properly used by defense counsel to dispute a fact alleged by the Indictment,” but if it can’t, then presumably the judge will say so in ruling on the motion.

  2. There’s no law that requires anyone to have this experience or that experience to hold a position on an issue. This is akin to argumentum ad baculum. “Your position is invalid because I can destroy you.” If there were such a law, I’m sure the Supreme Court would rule it unconsitutional. You value the Constitution, don’t you?

  3. France wasn’t a member of NATO in 1944 when it received help from US and UK. Of course, NATO didn’t exist at that time, but the point is that it IS possible to help nations that are not members of a formal alliance. (Please forward all of my nuggets of wisdom to whom they may concern. Thank you.)

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