John Durham sent a message to the attorney general and the country

John Durham has been a special prosecutor for almost a year and a half — not a long time, but plenty of time for a drumbeat to begin that he was showing little progress against his orders to examine the origins of the debunked Trump-Russia collusion narrative that convulsed a presidency. His few indictments so far have been directed against peripheral players, feeding a fear among Donald Trump’s supporters that elites higher up the stack are going to get away with their chicanery.

The problem for Durham is that these perceptions were providing the Biden Department of Justice (DOJ) with increasing political top cover to shut down the special prosecutor’s office as an unproductive, politics-driven exercise in futility that is wasting taxpayer dollars. If Durham were to be terminated, the American people might not even push back much since no one had a clue whether his investigation was bearing meaningful fruit.

Attorney General Merrick Garland already had undercut Durham’s investigation once by taking steps to rehabilitate the reputation of fired FBI Deputy Director Andrew McCabe, a key figure in the origins of the Trump-Russia collusion debacle. The Biden DOJ is not friendly to the goals of Mr. Durham.

Durham couldn’t hold a news conference or pen an op-ed touting progress; that’s just not done by investigators in the middle of an investigation. So, he turned to a readily available vehicle — a routine, fairly innocuous motion filed with the court — to embed an explosive message to the DOJ and the American people. It landed like fireworks at a funeral. No one saw it coming.

Tucked inside the court filing, John Durham laid out a good chunk of the case he’s building, and it was stunning. Durham revealed the outlines of a corrupt conspiracy by operatives linked to Hillary Clinton’s presidential campaign. The exposed conspiracy allegedly made a contrived, fraudulent and shocking attempt to entice the FBI and CIA to use their powers against the rival Trump campaign and presidency.

This recent filing by Durham was designed to have two effects. First, and most important, he has now made any decision by the president or attorney general to dump him much more difficult to undertake. The last time a president fired a special prosecutor who was making significant progress, he lost his presidency.

Second, Durham has signaled to the American people that his investigation has legs, despite perceptions of plodding inertia. He has provided hope that accountability in D.C. — rare as a MAGA sticker on a Prius — actually might happen.    

Durham’s filing triggered hyperbolic conjecture on the right and nervous silence on the left.  Don’t be distracted by reactions driven by politics. Look at the actual words Durham used; they’re troubling enough on their own.

Those words are found in a section of the filed motion titled “Factual Background.” In it, Durham expands on information that led him to indict an attorney connected to the Hillary Clinton campaign, Michael Sussmann, for allegedly lying to the FBI.  

According to Durham, Sussmann brought information to the FBI in September 2016 that he claimed proved a direct connection between candidate Trump and Russia to get the FBI to investigate. But Durham says Sussmann falsely told the FBI that he was not presenting the information on behalf of any client when, in fact, he was billing the Clinton campaign for his time.  

Sussmann’s defense attorneys now argue, in effect, that even if he lied, the lie would not be material because the information was valid. But the lie would be quite material, because Sussmann allegedly was asking the FBI to expend costly resources to investigate his claims. If he concealed the clients on whose behalf he evidently was acting, as Durham charges, he would have fraudulently deprived the FBI of facts that would have helped the bureau decide whether it was worth investing taxpayer dollars on an investigation. Knowing Sussmann’s true affiliations was clearly information the FBI deserved to know.  

In addition, despite the Sussmann attorneys’ assertions that the information he possessed was bona fide, Durham makes an interesting case why it allegedly wasn’t. At this point in the Factual Background section, he expands on the role allegedly played by “Tech Executive 1,” now known to be Rodney Joffe of Neustar, one of the country’s most powerful tech companies you’ve probably never heard of.

Durham’s description of Joffe’s alleged activities does not paint him in a good light. According to Durham, Joffe exploited Neustar data and other friendly sources to help him “establish … an inference and narrative” tying Trump to Russia — and that he allegedly did so to please “VIPs” within the Clinton campaign and its law firm. Sussmann happened to be Joffe’s attorney as well.

Joffe, in this scenario, isn’t an independent whistleblower; he’s a partisan whistle maker.  Durham could only know all this if either Joffe told him or the sources Joffe approached for help disclosed those conversations to Durham’s investigators. Neither reality can be comforting to those involved. Of all the points made in the Factual Background, Joffe’s alleged efforts and their disclosure are the most damaging to those who may have participated in a burgeoning conspiracy.

It is particularly damaging because, if true, Joffe appears to have unethically and possibly illegally turned over proprietary government data to a civilian third party. Plus, Durham makes a compelling argument that the data Joffe allegedly gave Sussmann for delivery to the FBI is incomplete and made to look more sinister than it really is. In addition, Sussmann and Joffe allegedly withheld from the FBI important context that would have placed the sinister overtones in a more innocuous light.  

Thanks to a routine court filing, the nation now knows the Durham investigation is no joke. He has set a ladder against a formidable wall and is climbing it rung by rung, apparently gaining cooperators and locking in testimony before a federal grand jury. There will be more squirming to come in powerful circles, but John Durham must be allowed to continue his important work.   

Kevin R. Brock, former assistant director of intelligence for the FBI, was an FBI special agent for 24 years and principal deputy director of the National Counterterrorism Center (NCTC). He independently consults with private companies and public-safety agencies on strategic mission technologies.