Durham surprised all of us who are following the Sussmann case with a wee-hours-of-the-morning filing last night. It addresses Durham’s claimed joint venture or conspiracy that Durham argues permits introduction of otherwise hearsay evidence: storage.courtlistener.com/recap/gov.usco…
Notably, for the first time Durham details a meeting on August 12, 2016, amongst Sussmann, the lead campaign lawyer, Marc Elias, Rodney Joffe (Tech Executive-1), and one of the founders of Fusion GPS (either Simpson or Fritsch, presumably).
Testimony in another case suggests that Laura Seago of Fusion may also been at that meeting, at which plans were discussed to collect and disseminate data and reports creating a “narrative” that Trump and Moscow were in close communication.
Durham’s description of the venture and its purpose puts a lie to the position taken by all who claim that everything Fusion was involved in while working with Perkins Coie was privileged. The. game was to create opposition research to give to the FBI and the press.
As he usually dies, Durham dropped another hint at some new, previously unknown aspect of the scheme that Durham is focusing on. In a footnote on the last page of the brief, Durham hints that Joffe may have improperly used his position at Neustar.
Here’s the footnote: “For example, as a result of perceived pressure to please Tech Executive-1 because of his role as a data provider for the Agency-1 contract, Researcher-1 ultimately sent an email endorsing Tech Executive-1’s draft white paper that the defendant would later…
provide to the FBI, stating: ‘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!’”
This suggestion of “perceived pressure” from Joffe is new. It raises the issue of whether Joffe used his position of control over private and govt data needed by prospective govt contractors, in order to unethically extract something from them.
The heart of this illicit scheme involved use of non public, sensitive data some of which were only available under sensitive govt contracts. Joffe stood in the middle as more or less a gatekeeper. Did he leverage that position, in breach of govt contracts, to misuse that data?
In recent briefing Durham has argued that notwithstanding the fact that over five years have passed since the meeting with the CIA about Yotaphones, Joffe still has possible criminal exposure because there are federal fraud crimes with longer than a five year SOL.
Durham is likely referring to 18 USC section 1031, which makes it a crime to commit fraud with respect to a govt contract having a value of $1 million or more. The statute of limitations is seven years. Read it here: law.cornell.edu/uscode/text/18…
So Durham’s latest breadcrumbs raise the question of whether he is considering charging Joffe with major fraud under Section 1031, for misusing sensitive data generated under a contract with the EOP, or data sold to Ga Tech by Neustar for use in the DARPA contract.
Finally, this is speculation, but in citing the CIA’s findings that the data given to them by Sussmann were likely “user created,” there is the specter that Joffe and his team may not only misappropriated secret govt data to use for political purposes,
… but they could have fabricated some of that data. Could such misuse and deceptive fabrication be part of a scheme “to obtain … property by means of false pretenses” in connection with the procurement of a govt contract? Or a fraud against the United States?
Section 1031 is the one fraud statute that jumps out as something Durham may be contemplating for charges against Joffe.
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