Special counsel John Durham’s team says “Tech Executive-1” Rodney Joffe, a former client of indicted Democratic cybersecurity lawyer Michael Sussmann, remains the “subject” of an “ongoing” investigation, hinting he is being scrutinized for possibly defrauding the Defense Advanced Research Projects Agency.
Durham prosecutor Andrew DeFilippis said during a Wednesday court hearing that the special counsel's team is still "looking closely" at Joffe. He insisted there continue to be “ongoing investigative matters” and said that “some criminal statutes are longer than five years.” Judge Christopher Cooper asked for an example, and the Durham prosecutor pointed to 18 U.S. Code 1031, which relates to major fraud against the U.S. government. DeFilippis specifically mentioned a DARPA contract.
Sussmann was indicted in September for allegedly concealing his clients — Clinton's 2016 presidential campaign and former Neustar executive Joffe — from FBI general counsel James Baker in September 2016 when he pushed since-debunked claims of a secret backchannel between the Trump Organization and Russia’s Alfa-Bank.
Sussmann has pleaded not guilty, and Joffe hasn't been charged with anything.
Durham says Sussmann similarly concealed Joffe as his client when he pushed further Trump-Russia collusion claims to the CIA in February 2017.
The special counsel’s filings reference Georgia Tech's "Agency-1 [DARPA] Contract." Durham’s indictment of Sussmann stated that if the FBI had been told the true origins of the Alfa-Bank claims, it might have learned Joffe “had enlisted, and was continuing to enlist, the assistance of researchers at a U.S.-based university who were receiving and analyzing Internet data in connection with a pending federal government cybersecurity research contract" through DARPA.
Joffe and Sussmann linked Trump to Russian-made YotaPhones near the White House and elsewhere. The special counsel has rejected these allegations and said the CIA did too.
Durham revealed this year he has evidence that Joffe “exploited” domain name system internet traffic at Trump Tower, Trump’s Central Park West apartment building, and the Executive Office of the President.
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DeFilippis said Wednesday that although the special counsel's team had not charged Joffe with anything, “We are not able to say that a crime was not committed.”
Sussmann lawyer Sean Berkowitz accused the prosecution on Wednesday of “overreach” by “telling a witness they could continue to face criminal liability.” He claimed, “There is no good faith perspective” of criminal liability related to the YotaPhone presentation to the CIA in February 2017.
Berkowitz insisted the “criminal exposure” for Joffe has “ended,” said the tech executive is a “critical witness” for the Sussmann defense, and asked for the prosecution to explain the situation to the judge privately.
The Durham prosecutor denied making any threats to Joffe, saying “we’ve been quite measured” and “we have to be candid.”
Berkowitz insisted the prosecution “should be able to make a decision about Mr. Joffe committing a crime” and called it a “tactical decision” by the prosecution to prevent Joffe from testifying.
The judge said he was “not sure” how he would rule and that “I’ll take it under advisement.”
A spokesperson for Joffe told CNN the arguments by prosecutors are "baseless and reckless" and claimed Durham was promoting an "unfounded political narrative through false innuendo.” The spokesperson contended that Joffe “did not defraud or mislead any branch of the U.S. Government.”
The judge separately on Wednesday denied Joffe’s sealed February motion to intervene and to expunge references to “Tech Executive-1” in Durham’s filings.
Cooper said Joffe’s February motion lamented that the media identified him within days of the September indictment of Sussmann and that “Joffe asserts that the Special Counsel’s inclusion of the allegations against him violates his Fifth Amendment rights by publicly implicating Joffe in wrongdoing without affording him a forum for vindication.”
“The government did not refer to Joffe by name, nor did it include the names of his companies or associates,” Cooper wrote. “And, as the Special Counsel points out, the Indictment does not accuse Joffe of criminal wrongdoing or identify him as an uncharged co-conspirator. Indeed, no conspiracy is charged in the Indictment.”
Sussmann’s lawyers are furious about Durham’s focus on Joffe.
“The Special Counsel has made Rodney Joffe a cornerstone of its case against Mr. Sussmann,” Sussmann's lawyers said in early April, adding that Joffe could offer “critical exculpatory testimony” but that Durham is “making it impossible.”
They argued the judge should dismiss the false statements charge against Sussmann if Durham won’t grant Joffe immunity.
Durham’s team wrote this month that “evidence at trial will show” that beginning in July 2016, Sussmann, Joffe, and agents of the Clinton campaign were “acting in concert toward a common goal” of “assembling and disseminating the Russian Bank-1 allegations and other derogatory information about Trump and his associates to the media and the U.S. government.”
Shortly after Clinton’s loss to Donald Trump in November 2016, Joffe said in an email, "I was tentatively offered the top [cybersecurity] job by the Democrats when it looked like they'd win."
The special counsel says Joffe also tasked researchers with mining internet data to establish “an inference” and “narrative” tying Trump to Russia. Durham said Joffe indicated he was doing this to please certain “VIPs” on the Clinton campaign.
Steven Tyrrell, a lawyer for Joffe, sent a letter to Sussmann’s office on April 1, saying, “My client will invoke his rights under the Fifth Amendment if called to testify at trial, even though he very much wants to set the record straight.”
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Durham revealed last week that the CIA concluded that the Alfa-Bank and YotaPhone claims pushed by Joffe and Sussmann were not “technically plausible.”