The Durham Memo: The Truth of This Nothingberger

Conservatives are going ape over Durham’s memo to the court because Fox and other conservative outlets are lying to them about what that memo said. Conservative media and pundits claim it’s proof Trump was “spied” on as President, that Trump’s claims to have been wiretapped were right all along, that Trump Trump’s electronics were “hacked” and so forth. Incredibly irresponsible claims assert that Durham has alleged treason. Trump himself suggested as much and declared that “in a stronger period of time in our country, this crime would have been punishable by death.” To which Jim Jordan asserted that Trump was “right on target.”

It’s difficult to understand how far beyond the realities of what Durham has actually said and asserted this demagoguery is, but I’ll try. Let’s discuss what Durham’s memo actually said, and did not say.

As a starting point, this supposedly blockbuster memo is not an allegation of anything. It’s a motion to investigate potential conflicts of interest the defendant, Michael Sussman’s, attorneys may have in the case. Even that is not to disqualify said attorneys, but only to allow Sussman to waive the conflict knowingly if it is determined a conflict exists. If that sounds like weak sauce, it is.

Durham has only one actual criminal charge at issue. A single count of lying to the FBI against Michael Sussman, an attorney who worked for the Clinton Campaign. To this day that remains the only alleged criminal conduct associated with this.

Durham alleges Sussman received internet data from Rodney Joffe in attempt to get derogatory data linking Trump to Russian banks. Here’s the thing. Joffe’s access to that data was legal. He did not “hack” or break in to it or anything like that and Durham does not allege he did. He is a tech company executive who can legally access the information at issue.

Durham does not allege Joffe did anything illegal in passing on this data. Nor does Durham allege that Sussman’s receiving and paying for the data was illegal. Durham alleges NOTHING related to this so-called “spying” was illegal.

Durham’s memo just presents the above as background for his one charge against Sussman. That charge claims that in September 2017 Sussman met with the FBI and gave them some data supposedly linking Trump to Russian banks.

For the record, for not even that does Durham assert any crime occurred. Nor does Durham allege the Sussman’s information was a knowing lie. Rather, Durham alleges that in this meeting Sussman falsely told the FBI he was not working for any client when in reality he was working for the Clinton Campaign. Durham alleges this lie misled the FBI into believing Sussman’s information was provided only as a “good citizen” and not for political purposes.

That alleged false statement is the one and only criminal act alleged by Durham related to this. Durham does not allege any hacking, any spying, any treason or any other illegal conduct no matter what Hannity, Tucker or whoever are saying. Nor has Durham implicated or even hinted at any wrong doing by Hillary Clinton. It’s simply not there.

Notably, Durham’s facts are disputed by attorneys for both Sussman and Joffe. They claim the data given was solely while Obama was President and done under a contract assessing White House electronic vulnerabilities. Sussman’s attorneys also argue to the court that the memo at issue was misleading, unnecessary for the motion related to conflicts of interests, intended to inflame the media (which is certainly did) and politicize what they assert was already a political case against their client.

It should be noted that even the allegation of lying against Sussman is poorly supported. At no point in either Durham’s indictment or this memo does he quote Sussman’s exact words that Durham claims were false. Nor does he give the context for those unknown words. Sussman’s attorneys argue that Durham knows his case is weak and is sensationalizing the case to smear Sussman for that reason.

But even assuming every word asserted by Durham is true, the only alleged crime articulated was Sussman’s one alleged false statement to the FBI about who he was working for when he met with the FBI.

Is this the best that Durham can do? Under pressure from Trump, Attorney General Barr appointed Durham in May 2019, almost three years ago, with the mission of discrediting the basis for the Mueller investigation that yielded so many actual felony convictions and indictments. Mueller’s far more productive investigation took less than two years. Durham is up to nearly three years now. He has secured one conviction, via plea agreement, for a low level FBI agent’s minor alteration to a document. That FBI agent got probation.

In the Trump world, Mueller’s less than two year investigation was an expensive eternity that went on too long. But they are giddy in believing that Durham’s year longer investigation is supposedly just getting started. So far Durham’s only allegations are for what they dismissed as mere “process crimes” when the defendants were in the Trump circle.

The manner of Durham’s appointment is suspect, and the charges he has brought after three years are weak. Where are the calls for him to “wrap it up”?




Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80

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Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80

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