'The Durham investigation is in real trouble': Legal expert untangles the right wing's latest conspiracy theory

The Donald Trump-appointed special counsel filed a misleading motion that has lit up Fox News and other conservative outlets, but a national security expert threw cold water on their narrative.

Fox News has been hyping special counsel John Durham's filing, which they have inaccurately declared as evidence that Hillary Clinton's campaign had paid technology executive Rodney Joffe to "infiltrate" a White House server, and Trump has called for anyone involved to be executed -- but attorney Marcy Wheeler explained how they had gotten their facts wrong to MSNBC's "Morning Joe."

"One of the things [Durham] revealed in that, which I have heard from other people is this claim that Rodney Joffe was accessing data from the White House," Wheeler said. "All of that data precedes Trump's inauguration, so you have Trump out there calling for these people to be put to death when really what happened is Rodney Joffe was trying to keep [then-president] Barack Obama safe from hackers. That's all it is. That's why Trump wants these people killed, Durham knows that."

"Durham knows that this data precedes Trump," she continued. "He didn't include it in the filing so he has everyone worked up on Fox News. John Ratcliffe, you showed him earlier. Kash Patel is the source of many of these false claims. They were both witnesses to John Durham and Kash Patel has known about this allegation going back to December of 2017 because he's the one who asked [cybersecurity lawyer] Michael Sussman about it. Michael Sussman was honest about it back in December 2017 and Kash Patel when he was an Intelligence Committee staffer, when he was working in the White House, when he was the chief of staff for [the Department of Defense] he did nothing about this because he knew that all Rodney Joffe was doing was trying to keep the White House safe from hackers. That's what this is about."

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Durham has accused Sussman of lying to FBI investigators during a September 2016 meeting about Trump's possible links to Russia, and this latest filing centers around the tech executive's investigation of rumors that computers at Trump Tower were communicating with servers at Russia's Alfa Bank.

"The Durham investigation is in real trouble," Wheeler said. "One of the allegations in the indictment is that Sussman was coordinating with the Hillary [Clinton] campaign on these Alfa Bank allegations back in October. Sussman was, like, name the people. In October, Durham said, 'I don't have any people.' In November, he first interviewed a Hillary staffer, he hadn't actually investigated this. We also learned recently that even though Durham and [then-attorney general] Bill Barr flew to Italy to get the phones from Joseph Mifsud, if you remember, is that Italian who was talking to George Papadopoulos. He never walked across DOJ to get the phones from James Baker, who is the single witness to this conversation with Michael Sussman. He didn't find out that DOJ [inspector general] had two of the phones until January. Then, after he revealed that he had these phones that he should have looked for four years ago, he then had to disclose that he had been told about one of the phones back in 2018 but he didn't remember it anymore."

"That's not the only thing that Durham didn't do before charging Sussman," Wheeler added.

She listed other flaws in Durham's investigation, and she expects Sussman to file a motion to dismiss the indictment against him -- and she believes the special counsel filed his pretrial motion last week to get ahead of that move.

"Probably what last Friday's stunt was about for Durham was an attempt to preempt that, an attempt to pretend that this investigation isn't kind of post-hoc a discovery of things," Wheeler said. "For example, he didn't investigate what the FBI's relationship is with Rodney Joffe before he charged Michael Sussman. He only pulled the communications when Sussman said, 'Why don't you find out what kind of relationship the FBI has with Joffe.' He discovered there were thousands of communications, so Durham is very close to position where Sussman is going to have the opportunity to say, 'You didn't do an investigation before you charged me.'"

"A week before he probably is going to have to do that this stunt comes out and you have all of these people who were witnesses, who fed these conspiracy theories to Durham on the front end," Wheeler concluded, "who then go on Fox News and make false claims about it. That's what the story is, Kash Patel garbage in, Kash Patel garbage out, and Trump threatening to kill people as a result."

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