Special Counsel John Durham, the federal prosecutor tapped during the Trump administration to investigate the origins of the Russia investigation, could be days – if not hours – from taking his case to a grand jury against a cybersecurity attorney for allegedly providing a false statement to the FBI, Fox News has learned.
But the clock is ticking.
Durham is zeroing in on a Sept. 19, 2016, conversation between the lawyer, Michael Sussmann, and an FBI employee, a source said. The statute of limitations expires this weekend and questions remain on whether he will have funding to continue his investigation past the end of the government's fiscal year on Sept. 30.
Durham has yet to submit an official report to the Justice Department, but portions are expected to include unfavorable information about the FBI, two sources told Fox News. Durham has cast his net wide and is apparently looking at individuals outside of government, they said.
Durham’s review has led to one prosecution thus far and has stretched longer than the two-year tenure of special counsel Robert Mueller, the Wall Street Journal pointed out last month.
Lawyers for Sussmann told Fox News on Wednesday night that their client is a "highly respected national security and cyber security lawyer" who served in the Justice Department during both Republican and Democrat administrations.
"Mr. Sussmann has committed no crime," they said. "Any prosecution here would be baseless, unprecedented, and unwarranted deviation from the apolitical and principled way in which the Department of Justice is supposed to do its work. We are confident that if Mr. Sussmann is charged, he will prevail and vindicate his good name."
Durham was appointed to the position in 2019 by then-Attorney General William Barr, with a mandate to examine how the FBI and intelligence community set about investigating Russian interference in the 2016 U.S. election and potential coordination with former President Trump’s campaign.
Durham's team has interviewed officials across the Justice Department and intelligence community, including former CIA Director John Brennan. Durham has told colleagues that he would not bring a case forward unless he is confident he could win, sources told Fox News.
The New York Times, which was the first to report on the possible indictment, said Sussmann is a partner at the Perkins Coie law firm who represented the Democratic National Committee "on issues related to Russia’s 2016 hacking of its servers."
Sussmann met with FBI General Counsel James Baker in 2016 and reportedly raised suspicions that there were covert communications between computer servers tied to the Trump Organization and Russia's Alfa Bank prior to the election. (The paper pointed out that the FBI determined the theory was meritless.)
His law firm, on behalf of the Clinton campaign and the DNC, retained Fusion GPS, the Washington Post reported. The research firm eventually hired Christopher Steele, the former British intelligence operative who went on to write the dossier about alleged links between Trump and Russian President Vladimir Putin. The paper said that the Clinton campaign and the DNC, through Perkins Coie, funded Fusion GPS’ research up to days before the election.
The dossier contained claims about alleged ties between Trump and Russia that served as the basis for Foreign Intelligence Surveillance Act (FISA) warrants obtained against former Trump campaign aide Carter Page.
Twitter sleuth Techno_Fog wrote on Substack that Fusion GPS-Sussmann correspondence occurred not long before he met with Baker.
"The e-mails correspond to the dates the Alfa Bank/Trump Organization was getting media exposure. One has to wonder what other correspondence Sussmann had with Fusion GPS," the post read.
The Times reported that the central question about the case against Sussmann is who he represented when he raised questions about Trump to the FBI. The paper reported that Durham's investigators looked into whether he "was secretly working for the Clinton campaign." The paper pointed out that Sussmann has denied the allegation.
The Times' report said it is believed Baker told investigators that Sussmann said he was not meeting on behalf of a client, which Techno Fog said was "contradicted by (1) Sussmann’s testimony to Congress; and (2) Sussmann’s own billing records."
The paper reported that Sussmann's attorneys are said to have insisted that he
"was representing the cybersecurity expert he mentioned to Congress and was not there on behalf of or at the direction of the Clinton campaign."
The lawyers are also "said to have argued that the billing records are misleading" because their client was not charging his client on the bank matter, "but needed to show internally that he was working on something," according to the paper.
Baker is not to be confused with James A. Baker III, a former U.S. secretary of state and treasury secretary.
Trump insisted that the entire Russian collusion allegation by Democrats was nothing more than a witch hunt because they could not accept that he defeated Clinton.
The DOJ and Durham’s team declined to comment to Fox News about this case. Perkins Coie and Baker did not immediately respond to after-hour emails from Fox News.
There are doubts about the possible action against Sussmann and his online defenders say it seems like there is not much of a case based on the Times' report.
Joyce Alene, a professor at the University of Alabama School of Law and legal analyst at MSNBC, retweeted the Times’ report and said, "To convict, prosecutors must establish that the lie the defendant is charged with was "material" - that it had a tendency to influence the FBI’s work. From this story, it’s not clear what Sussmann did that qualifies."
The Associated Press contributed to this report.