Special counsel John Durham, who is probing the origins of the counterintelligence investigation against Donald Trump’s campaign, filed late Thursday a response to former Hillary Clinton campaign lawyer Michael Sussmann’s motion to strike six paragraphs from Durham’s case against him.
Sussmann filed a motion (pdf) on Feb. 14 to strike six paragraphs that comprise the “Factual Background” section in Durham’s filing on Feb. 11.
Durham’s filing alleged that Trump’s residences and the White House were spied on by a tech executive aligned with the Democratic Party, who is identified in reports as Rodney Joffe.
Sussmann wrote in his Feb. 14 motion to strike, “Given the Special Counsel’s pattern of including unnecessary prejudicial material in public filings, there can be no doubt that the superfluous ‘Factual Background’ in the Special Counsel’s motion is intended to further politicize this case, inflame media coverage, and taint the jury pool.”
He said that “[a]pproximately half of this Factual Background provocatively—and misleadingly—describes for the first time Domain Name System (‘DNS’) traffic potentially associated with former President Donald Trump, including data at the Executive Office of the President (‘EOP’), that was allegedly presented to Agency-2 in February 2017.”
He continued: “These allegations were not included in the Indictment; these allegations post-date the single false statement that was charged in the Indictment; and these allegations were not necessary to identify any of the potential conflicts of interest with which the Motion is putatively concerned. Why then include them? The question answers itself.”
The indictment to which Sussmann referred is the filing from Durham in September 2021 (pdf). There, Durham alleged that Sussmann had told then-FBI General Counsel James Baker in September 2016 that he wasn’t working for any client when he met with Baker to provide information that purported to connect the Trump Organization to a Russian bank. The information has since been debunked.
Durham said in his filing on Thursday (pdf) that the court should deny Sussmann’s motion to strike the six paragraphs. He said it is “simply not true” that his office “intentionally sought to politicize this case, inflame media coverage, and taint the jury pool.”
Durham said that two paragraphs of “limited additional factual detail” had been included in the motion “for valid and straightforward reasons.”
“First, those paragraphs reflect conduct that is intertwined with, and part of, events that are central to proving the defendant’s alleged criminal conduct,” Durham wrote. “Second, the Government included these paragraphs to apprise the Court of the factual basis for one of the potential conflicts described in the Government’s Motion, namely, that a member of the defense team was working for the Executive Office of the President of the United States (‘EOP’) during relevant events that involved the EOP.”
Durham said that if media outlets or third parties had misinterpreted or misrepresented facts in his motion against Sussmann, “that does not in any way undermine the valid reasons for the Government’s inclusion of this information.”
As such, “there is no basis to strike any portion of the Government’s Motion,” Durham wrote, adding that the government intends to file motions “in which it will further discuss these and other pertinent facts to explain why they constitute relevant and admissible evidence at trial.”
Durham’s response comes slightly after Sussmann filed a separate motion on the same day to dismiss Durham’s case against him. Sussmann’s lawyers said the case is one of “extraordinary prosecutorial overreach.”