Former Clinton Campaign attorney Michael Sussmann will go on trial May 16 for allegedly lying to the FBI about being a “concerned citizen” in September 2016 when he provided the agency with data purporting to document a “secret server” link between the Trump Organization and a Russian bank.
But Sussmann won’t be tried on the claims made from data itself; he won’t be asked if he knew when he presented the information to FBI general counsel James Baker on Sept. 16, 2016, that it a was bogus concoction timed to hit the headlines within weeks of the Trump-Clinton presidential election.
The trial is set down for Cooper’s Washington, D.C., courtroom.
Sussmann will be tried for not informing Baker that he was working for Rodney Joffe, whose cybersecurity firm had a contract to monitor the President’s Office DNS (Domain Name System) traffic, and for Hillary Clinton’s 2016 campaign committee, which his Washington, D.C.-based Perkins Coie lawfirm represented.
It isn’t “material,” they say, because Sussmann believed the technical data in “white papers” and other documents he conveyed to Baker to be true or, at least suspicious enough to warrant investigation.
“The indictment does not allege that Mr. Sussmann knew—or should have known—that the [Russian bank] information was false,” his attorneys argued.
“Instead, Mr. Sussmann is charged simply with purportedly lying about whether he was acting on behalf of a particular client when conveying that information.”
The motion “largely ignores the second part of the test: whether the statement could influence ‘any other function’ of the agency,” Cooper wrote, noting “applying that prong of the materiality standard,” to a “'lie distorting an investigation already in progress’ also would run afoul” and certainly be “material.”
Durham maintains that by not disclosing ties to Roffe, the Clinton Campaign, and the Democratic National Committee (DNC), Sussmann “misled FBI personnel and deprived the FBI of information that might have permitted it more fully to assess and uncover the origins of the relevant data and analysis, including the identities and motivations of Sussmann’s clients.”
Cooper referenced Durham’s claim in his ruling, noting “as the Special Counsel argues, it is at least possible that statements made to law enforcement prior to an investigation could materially influence the later trajectory of the investigation. Sussmann offers no legal authority to the contrary.”
Martin is regarded as among the nation’s foremost authorities in advanced digital forensics, malware automation, data and network analysis. He leads a 50-agent team within the FBI Cyber Division’s Cyber Technical Analysis Unit in Chantilly, Virginia.
In an April 4 notice, Durham’s office said the “primary purpose” of 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” to be presented at trial.
Martin’s testimony will explain “that DNS is a naming system for devices connected to the internet that translates recognizable domain names, e.g., http://www.google.com, to numerical IP addresses, e.g., 123.456.7.89,” the notice reads.
Martin will a “further explain that a DNS ‘lookup’ refers to an electronic request by a particular computer or device from another device or server.”
Durham’s office said Martin “will describe how certain private companies and entities maintain DNS ‘resolvers’ and, in some cases, offer ‘DNS resolution services’” to their customers. In explaining these concepts, he will also explain how DNS data is typically processed and stored by these and other entities.”
While such technical data under most circumstances would be snorefests, not so in Durham’s allegations, which imply Sussmann, who specializes is cybersecurity litigation, should have known the data being passed along to the FBI was spurious at best.
That information claimed two servers at Alfa Bank, Russia’s largest bank, sent more than 2,700 “look-up” messages in 2016 to “a Trump Organization-connected server” improbably operated by Spectrum Health, a managed care health care organization in Michigan.
However, those 2,700 “look-ups” using a mail1.trump-email.com host were dispatched by Cendyn, which does marketing/promotions for hotels, including for Trump hotels, and issued across the metaverse through a spam email contractor, Philadelphia-based Listrak.
Reviews by The Intercept, among others, quickly showed the allegations involved spam traffic and that there was no “secret server” between the Trump Organization and Russia.
According to filings, Durham’s line of inquiry will ask Martin to “provide the jury with specific examples of DNS data ... to describe the interpretation and meaning of such data, including particular fields that appear within the data. He will further testify concerning the nature and types of conclusions that can–and cannot–be drawn about persons’ or entities’ online activities based on a review of DNS data.
Durham “never once suggested“ he ”intended to call an expert witness” when he appeared before Cooper on March 30, the filing contends.
“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,“ Sussmann’s attorneys argued, ”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.”
