Techno Fog's Intriguing 'Transition Theory'

Indicted Clinton lawyer Michael Sussmann’s lawyers have responded to Special Counsel John Durham’s motion regarding their rather clear conflicts of representation. That’s not really the point, since Sussmann himself says he’s totally down with his lawyers having conflicts. What has turned out to be rather interesting is that Sussmann’s lawyers, the law firm of Latham & Watkins, is all in a huff about Durham revealing at least a bit of what he knows about the activities of Sussmann and tech exec Rodney Joffe (not yet indicted).

This is the angle that Techno Fog looks into. To review what this is about, what got Sussmann’s lawyer’s so worked up:

The unstated scandal: The CIA collected info on President Trump

The DNC's direct line to the CIA

…

The issue that made more noise, however, was Durham’s disclosure that Rodney Joffe – a contractor with deep ties to the Clintons, and what appears to be a deep hatred for Trump – had exploited Executive Office of the President of the United States data he obtained from a “sensitive arrangement” with the U.S. Government to damage President Trump.

It appears from Durham’s motion that the information Joffe gathered pertained not only to EOP matters—which may have involved far more than just Trump—but also to Trump’s personal life. Durham’s statement is quite remarkable, regarding the breadth of Joffe’s probing:

Now, Techno Fog’s “transition theory” is this. Sussmann’s lawyers protest that the information that Sussmann received from Joffe and passed on to the CIA in February, 2017, was actually collected “when Barack Obama was president.” Techno Fog astutely notes that this amounts to a non-denial, or a distinction without a difference, if you prefer. He makes two points in that regard—one regarding the quite lengthy period of time during which Joffe was collecting this information, and the other regarding the nature of transitions between presidential administrations.

Regarding the length of time he notes that Durham’s filing refers to Joffe’s activity as taking place in “late 2016” and “early 2017”. That sounds very much like the transition period from the election (November 8, 2016) to the inauguration (January 20, 2017). So:

If Sussmann’s attorney is telling the truth (never a given), then we suspect the Executive Office of the President data included that from the 74 day the Trump transition period (between the November 8, 2016 election and the January 20, 2017 inauguration) – which would still be spying on the incoming Trump Administration.

Transition periods are unique in both a legal and a constitutional sense, and are governed by a special law. The incoming administration takes on certain official duties even before the inauguration, to ensure that the office of the presidency continues to function smoothly during this period. For example, the incoming president’s national security adviser—call him Michael Flynn, for the sake of the argument—might make contact with official representatives of foreign powers, ambassadors to offer one possibility. The country needs a smooth transition for very real reasons of national security.

Note that Joffe’s EOP access was probably authorized, but his use of that access was not. Turning the information over to Sussmann—a private citizen employed by the Hillary campaign—without clearing that with the incoming Trump administration may or may not have been a criminal offense, but it certainly would have been a firing offense. Joffe’s access to Trump’s personal comms—of whatever nature—were certainly not authorized. Again, whether they involved any criminality is not clear, but he hasn’t been indicted for any of those actions.

So far, so good. The “transition theory” offers a glimpse at what I surmise was the attempt to prevent Trump from ever being inaugurated.

However, at this point—the point at which Sussmann goes to the CIA with the information that Joffe had collected—I’m afraid Techno Fog attempts to take the known facts further than is warranted.

Before I reproduce Durham’s actual words, I want to make some important points about what Durham says.

First of all, note that Sussmann approached the CIA not once but twice. On the first occasion he was able to meet with several CIA officials, including the General Counsel—obviously, a pretty important guy. The second time that Sussmann approached the CIA, however, no meeting ensued. That should be suggestive.

Second, while Durham states that the information Sussmann offered to the CIA was related to the old Alfa Bank Hoax, Durham also refers to “other purported data allegedly involving Trump-related computer networks and Russia.” That means that we can’t be really sure of the nature of the information.

Third, note that Durham carefully avoids suggesting any illegality in these actions by Sussmann—although I don’t for a moment doubt that Durham has researched that possibility. What Durham does do is very pointedly suggest that Sussmann may yet be indicted for making the same false statement to the CIA that he had previously made to James Baker at the FBI—that he (Sussmann) was not acting on behalf of any client.

Fourth, at no point does Durham suggest that Sussmann provided documents to the CIA and that the CIA accepted those documents. Rather, Durham writes that Sussmann “convey[ed] these allegations” to the CIA. That suggests to me an oral briefing.

Fifth, while we can’t be sure from Durham’s terse statement why the second “meeting did not go forward,” I believe that it’s a fair inference that the CIA General Counsel had heard and seen enough of what Sussmann had to offer the first time around and decided he had far more important things to do than meet again with Michael Sussmann.

With that lengthy preamble, read what Durham says:

From this, unfortunately, Techno Fog goes on to make a number of allegations that I don’t believe are supported by what we know—based on Durham’s own words.

First, Techno Fog states that “A top CIA official answered the call of a DNC lawyer”. I guess that’s true, however …

One absolute fundamental in intelligence work is that it’s difficult to know what other people are up to if you refuse to speak to them. We don’t know how Sussmann pitched his request for a meeting. From a security standpoint it’s highly doubtful that he did more than offer vague assurances that he had information of supreme importance that, in his opinion, fell within the CIA’s purview. Given Sussmann’s connectedness, of course he got in the door. That’s how the world works. Sussmann’s known connections made his pitch at least somewhat plausible.

Second, Techno Fog alleges that the CIA “targeted” a US Person—namely, the President Elect of the United States. The CIA did this, says Techno Fog, by “willing[ly] … accept[ing] politically damaging information against the President.” As already stated, we have no reason to believe either that Sussmann offered documents or that, if he did, the CIA accepted them. Beyond that, what was the CIA General Counsel supposed to do? Cover his ears when Sussmann began saying bad things about Trump?

Again, Techno Fog states as fact that

(Joffe) obtained sensitive information (perhaps unlawfully) about the Office of the President of the United States (Trump), manipulated the information, passed it to a DNC/Clinton lawyer (Sussmann), who then delivered it to the CIA.

But all Durham says is that Sussmann “convey[ed] allegations.” Listening to Sussmann’s allegations is NOT the same thing as, in Techo Fog’s words, “collecting information regarding U.S. persons” inside the United States. Durham will know what actions, if any, the CIA took. From the fact that Sussmann never got in the CIA door again I’d have to conclude that the CIA decided that Sussmann had nothing to tell them that was CIA business.

Third, Techno Fog maintains that the CIA, by meeting with Sussmann and listening to what he had to say, was illegally conducting a domestic operation against a US Person. The CIA, he says, “is generally prohibited from conducting domestic operations.”

Like many things in life, this is one of those things that’s just not that simple. The CIA does, in fact, conduct operations within the US—fully authorized. There’s even a Wikipedia page that describes some of those operations:

The National Resources Division (NR) is the domestic division of the United States Central Intelligence Agency. Its main function is to conduct voluntary debriefings of U.S. citizens who travel overseas for work or to visit relatives, and to recruit foreign students, diplomats and business people to become CIA assets when they return to their countries.

I’m here to tell you that there is no way the CIA can conduct such activity without also receiving information about US Persons. Guess what? They sometimes share that information with the FBI.

Speculation on what Durham is up to and where his investigation is head is normal and natural. However, we all need to be careful about getting out ahead of the known facts.