The Democratic cybersecurity lawyer charged with lying to the FBI about who he was working for when he shared internet data that suggested a now-debunked Trump-Russia link doesn’t want special counsel John Durham’s expert FBI witness to testify about the information's accuracy.
The legal team representing Michael Sussmann complained that the special counsel "never once suggested that it intended to call an expert witness" for months, according to a Friday evening court filing. “Now — a mere six weeks before trial — the Special Counsel has provided a perfunctory and legally deficient notice that he intends to call Special Agent David Martin of the FBI to offer highly technical and complex testimony at trial, including (at his sole discretion) on a topic that the Special Counsel has told the Court he does not intend to put at issue at trial, namely, the accuracy of the data that Mr. Sussmann provided to the FBI, as well as the accuracy of the conclusions drawn from that data.”
Sussmann “is amenable to expert testimony from Special Agent Martin that helps educate the jury about basic, uncontroversial issues like what Domain Name System data is," his defense lawyers said, adding that he “objects to any expert testimony regarding the accuracy of the data or the accuracy of conclusions drawn from the data.” Such testimony is “not relevant” to the false statements charge, and Sussmann “would be unfairly prejudiced" by the testimony, the lawyers said. They insisted to the judge this is an “ambush.”
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“Notably, the Indictment makes no allegation regarding the accuracy of the data that Mr. Sussmann provided to the FBI or the specific conclusions reached about the data,” Sussmann’s lawyers argued. “Moreover, the Indictment does not allege (nor could it) that Mr. Sussmann, a lawyer without a technical background, knew the data was inaccurate or even had the professional expertise to evaluate its accuracy.”
Sussmann’s lawyers said they told the special counsel March 31 that they would not object to the FBI special agent testifying about the basics of domain name systems but were upset that “the Special Counsel refused to narrow the scope of the expert testimony.”
The defense team argued that “the only thing relevant to the charged crime regarding these topics is, at best, evidence that bears directly on Mr. Sussmann’s state of mind or intent regarding the accuracy of the data."
Sussmann was indicted last September for allegedly concealing his clients — Hillary Clinton's 2016 presidential campaign and “Tech Executive-1,” known to be former Neustar executive Rodney Joffe — from FBI general counsel James Baker in September 2016 when he pushed claims of a secret backchannel between the Trump Organization and Russia’s Alfa Bank. The FBI looked into the suspicious data but determined collusion was unfounded, according to a Justice Department inspector general report.
Durham revealed in February he has evidence that Joffe “exploited” DNS internet traffic at Trump Tower, former President Donald Trump’s Central Park West apartment building, and the Executive Office of the President. The special counsel said in October that Joffe exploited his company's access to data at a "high-ranking executive branch office" both before and after the 2016 election.
The special counsel said in February that Sussmann told a U.S. government agency, believed to be the CIA, about the dubious Russian bank connection in a February 2017 meeting in which Sussmann again allegedly misled about who his client was. Sussmann claimed data he had access to “demonstrated that Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House and other locations," according to Durham, who emphasized that he found "no support for these allegations."
The special counsel said in a March 30 letter to Sussmann that “the data underlying the allegations that the defendant provided to the FBI and Agency-2 was purported DNS data.” The special counsel said the “primary purpose” of FBI Special Agent David Martin’s testimony will be to describe for the jury “the basic mechanics, architecture, and terminology of the DNS system and DNS data so that they can understand various technical concepts that appear in documents and other evidence that the Government will offer at trial.”
Martin will explain the Onion Router, or Tor, an open-source software platform that enables anonymous communications, and describe the concept of a “TOR exit node," Durham said. The special counsel also told the defense team that “as you are aware, a white paper that the defendant submitted to FBI General Counsel Baker contained assertions about the purported use of a TOR exit node by the Trump Organization and Alfa Bank.”
“You have indicated in recent discussions that you may seek to limit the testimony and evidence at trial concerning the purported DNS data solely to that which reflects the defendant’s state of mind and subjective understanding of the purported DNS data at issue in this case,” Durham wrote. “We therefore understand that you are not currently inclined to offer evidence, or engage in questioning, that would imply, assert, or seek to prove the authenticity of the relevant DNS data or the actual truth of the allegations at issue concerning a secret channel of communications between the Trump Organization and Alfa Bank.”
But Durham said that if Sussmann “seeks to establish or encourage particular conclusions in this regard,” then the special counsel reserves the right to have Martin testify concerning topics such as the “authenticity” of the “purported data” behind the allegations given to the FBI and CIA, the possibility that the data was “fabricated, altered, manipulated, spoofed, or intentionally generated” to create the false appearance of secret communications, and whether the DNS data actually support the claim of a secret backchannel.
The special counsel said that in that instance, he could also have the FBI special agent testify on whether the DNS data provided to the CIA actually support the conclusion that Trump and/or his associates used Russian-made phones near Trump Tower, Trump’s apartment, and the White House, as well as have him discuss "the validity and plausibility of the other assertions and conclusions set forth in the various white papers that the defendant provided to the FBI and Agency-2."
Durham added that he also “reserves the right to call additional expert witnesses and/or substitute expert witnesses.”
A five-page curriculum vitae for Martin provided by Durham states that he has been unit chief for the FBI Cyber Division Cyber Technical Analysis Unit since February, with his job being to “lead a team of over 50 FBI employees and contractors responsible for the FBI Cyber Division’s Advanced Digital Forensics.” He has worked in that unit since 2015 and became a special agent in 2009.
Durham has said Joffe tasked his own employees and associates in 2016 with mining and assembling internet data that would support an “inference” or “narrative” tying Trump to Russia, with the tech executive stating in emails that the goal was to please “VIPs” — apparently referring to Sussmann, Clinton campaign general counsel Marc Elias, and the Clinton campaign. He referred to this as a “joint venture” this week.
Clinton tweeted about the Alfa Bank matter on Halloween 2016, just days before the election.
“Computer scientists have apparently uncovered a covert server linking the Trump Organization to a Russian-based bank," Clinton said. And she shared a lengthy statement from campaign adviser Jake Sullivan, who is now President Joe Biden's national security adviser.
“This could be the most direct link yet between Donald Trump and Moscow,” Sullivan claimed. “This secret hotline may be the key to unlocking the mystery of Trump’s ties to Russia.”
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Sullivan added, “We can only assume that federal authorities will now explore this direct connection between Trump and Russia.” He continued pushing the claims in 2017.
Michael Horowitz, the inspector general of the Justice Department, said in a 2019 report that the FBI "concluded by early February 2017 that there were no such links" between former Trump and Alfa Bank. When asked about the Alfa Bank claims during House testimony in 2019, special counsel Robert Mueller said, "My belief at this point is that it’s not true.” A bipartisan Senate Intelligence Committee report released in 2020 said investigators did not find "covert communications between Alfa Bank and Trump Organization personnel."