Durham Should Have Enough to Pursue Conspiracy Charges, but Might Not: Former FBI Agent

Durham Should Have Enough to Pursue Conspiracy Charges, but Might Not: Former FBI Agent
John Durham speaks to reporters on the steps of U.S. District Court in New Haven, Conn., on April 25, 2006. (Bob Child/AP Photo)
Petr Svab

Special counsel John Durham may have sufficient grounds to seek charges against multiple parties for conspiracy to lie to the government, although he may refrain from doing so, according to a former FBI special agent and federal prosecutor.

Durham is already saying there was a “joint venture” between various parties, including agents of the 2016 presidential campaign of former Secretary of State Hillary Clinton, the lawyers retained by the campaign, and their associates and subcontractors. The goal of the venture was to collect dirt in 2016 on then-presidential candidate Donald Trump in order to help Clinton. That isn’t illegal.

Durham also has outlined evidence that suggests he may in the future charge that a part of the venture was to peddle the dirt to the U.S. government with the understanding that lies—at least lies by omission—would be told during this process. That could be a criminal conspiracy. Yet whether such charges are forthcoming doesn’t depend only on whether a law was technically broken, according to Marc Ruskin, a former FBI special agent and assistant district attorney.

“I think that a strong argument can be made that there would be sufficient justification for a conspiracy charge and that it shouldn’t be a surprise if one is brought. But also, there are a lot of ... strategic factors that go into a determination by a prosecutor as to what charges to make,” he told The Epoch Times.

If Durham, for example, intends on pursuing more serious charges or expects to have a more solid footing on a different charge, he may avoid bringing lesser or weaker charges that “may prove to be a distraction,” Ruskin said.

Durham has so far brought three indictments, one of which resulted in a guilty plea. He hasn’t charged conspiracy, which is a federal felony with penalties depending on the seriousness of the underlying crime.

Criminal conspiracy is legally defined rather differently than how people may understand the term colloquially, Ruskin noted. The government only needs sufficient circumstantial evidence that at least two people had an understanding that they would do something that violates federal law. But they don’t actually have to follow all the way through on breaking the law. At a minimum, only one of them needs to perform an “overt act” in furtherance of the plan.

Meanwhile, the crime of lying to the government could also be interpreted broadly. One needs to tell a government official performing his official duties something that’s not true and that’s “material,” meaning it would have a natural tendency to affect how the government performs its duties, even if the lie doesn't result in such a change. The lie doesn’t necessarily need to be explicit. It could be a lie by omission, Ruskin explained, although he acknowledged such an interpretation would depend on the specific facts of a case.

That suggests Durham wouldn’t even need to prove that the Clinton operatives lied. He would need to prove that they had an understanding that they would be providing information in a way that would mislead the government.

There are some indices to this effect already on record.

Durham has charged cybersecurity lawyer Michael Sussmann, who in 2016 was working on behalf of the Clinton campaign, with lying about his motivation for bringing information to the FBI.

In September 2016, Sussmann met with the FBI’s then-General Counsel James Baker and gave him reports and data supposedly showing nefarious electronic communications between the Trump Organization and Russia's Alfa Bank.

Before the meeting, Sussmann emailed Baker explicitly saying he wasn't going there representing any client. But in actuality, he was billing the time to the Clinton campaign.

The FBI determined the data didn’t show any nefarious communication.

Durham has said the researchers who analyzed the data as part of the alleged venture were asked to support an “inference” and “narrative” tying Trump to Russia. It appears one of the researchers praised the draft report for concealing its apparent flaws.

“A DNS expert would poke several holes to this hypothesis (primarily around visibility, about which very smartly you do not talk about). That being said, I do not think even the top security (non-DNS) researchers can refute your statements. Nice!” the researcher wrote in an email to Rodney Joffe, an executive or co-owner of several cybersecurity companies, who produced the report and provided it to Sussmann (pdf).

Durham also pointed out that Sussmann and his clients had a “compelling motive ... to conceal the identities of such clients and origins of the joint venture” because of the “political nature of the exercise and the numerous doubts that the researchers had about the soundness of their conclusions.”

What could seal the deal for Durham would be some communication between the parties in the venture indicating that more than one of them had an understanding that they would give information to the government, but wouldn’t tell the whole story, knowingly misleading the government.

The problem is that the accused parties claim that their internal communications are covered by attorney–client privilege and “work product” privilege. They say the reason that Sussmann’s then-employer, law firm Perkins Coie, was hired by the Clinton campaign was to offer legal advice, including advice on potential defamation lawsuits brought by Trump against the campaign. As such, they needed to compile facts about Trump so they would be sure that what they say about him during the campaign was accurate.

However, Durham isn't buying it. He’s argued that the venture collected info on Trump primarily not to aid a legal analysis, but to disseminate the information with little regard for supposed confidentiality.

In particular, one party to the venture—opposition research firm Fusion GPS, which was hired by Perkins Coie to look into Trump—“displayed none of the caution or markers of confidentiality that would typically accompany a legal effort to assess or avoid liability for libel or defamation,” Durham’s team said in an April 26 court filing (pdf).

“The parties’ privilege theory here is akin to claiming that a homeowner pursued ‘legal advice’ regarding noise complaints by having his lawyer hire a marching band to perform in his backyard,” the filing says.

Durham is asking U.S. District Judge Christopher Reid Cooper for the District of Columbia to privately review a few dozen supposedly privileged emails to determine if they are indeed privileged. If they aren't, these documents and potentially many others should be provided to prosecutors.

The Sussmann trial is scheduled for mid-May. He has pleaded not guilty.

Durham was tasked around March–May 2019 with reviewing the 2016–2017 FBI investigation of alleged collusion between candidate and later President Donald Trump and Russia to sway the 2016 election. No such collusion was found.

In October 2020, then-Attorney General William Barr appointed Durham as special counsel. In February 2021, Durham resigned his position as a federal prosecutor and has continued the investigation in the sole capacity of special counsel.

Correction: A previous version of this article incorrectly characterized Rodney Joffe's relationship with the relevant companies. He was an executive or a co-owner of several cybersecurity companies. The Epoch Times regrets the error.
Petr Svab is a reporter covering New York. Previously, he covered national topics including politics, economy, education, and law enforcement.