Durham Says He Forgot About Key Piece Of Evidence

U.S. Attorney John Durham, center, outside federal court in New Haven, Conn., after the sentencing of former Gov. John Rowland. Durham will continue as special counsel in the investigation of the origins of the Trump-Russia inquiry, but is being asked to resign as U.S. attorney. (Bob MacDonnell/Hartford Courant/Tribune News Service via Getty Images)
U.S. Attorney John Durham, center, outside federal court in New Haven, Conn., after the sentencing of former Gov. John Rowland. Durham will continue as special counsel in the investigation of the origins of the Trump... U.S. Attorney John Durham, center, outside federal court in New Haven, Conn., after the sentencing of former Gov. John Rowland. Durham will continue as special counsel in the investigation of the origins of the Trump-Russia inquiry, but is being asked to resign as U.S. attorney. (Bob MacDonnell/Hartford Courant/Tribune News Service via Getty Images) MORE LESS

In a late Friday-night court filing, Special Counsel John Durham made a strange admission: he had already seen a key piece of evidence, in 2018, that he claimed not to have known about until last week.

Durham said that during a 2018 investigation, he reviewed two FBI cell phones belonging to the bureau’s former general counsel, James Baker.

Last year, Durham’s grand jury indicted lawyer Michael Sussmann, charging that the attorney failed to tell Baker that he was acting on behalf of a client during a 2016 meeting in which Sussmann relayed information about a supposed link between a Trump organization server and a Russian bank. Baker was Durham’s chief — and only — witness.

The case against Sussmann was a head-scratcher. It has been criticized as minor, irrelevant to the broader question of the FBI’s investigation of Russian interference in the 2016 election, and a politically motivated attempt to follow Trump’s call to investigate the investigators.

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It’s also been plagued in particular by disputes over evidence that Durham has gathered since securing a grand jury indictment against Sussmann in September 2021. Defense attorneys for Sussmann have argued that some of the evidence shows that Baker — the recipient of the alleged lie and the sole witness to the false statement — has had a shifting recollection of the event in question over the years.

Last week, Durham filed a document noting that his office had thought to seek reams of relevant evidence after Sussmann was indicted, notably information held by the Justice Department’s Office of Inspector General, which probed the origins of the FBI’s Trump-Russia probe.

Among other things, that filing noted that the OIG office had transcripts of interviews with Baker that had been previously unobtained by Durham’s office, and that it had two cell phones belonging to Baker from 2016.

Durham wrote in the filing that all this was new to him. On Friday, he reversed that position.

The OIG, the filing reads, informed Durham that in February 2018, he discussed obtaining the very same cellphones in connection with a different investigation.

“Special Counsel Durham has no current recollection of that conference call, nor does Special Counsel Durham currently recall knowing about the OIG’s possession of the former FBI General Counsel’s cellphones before January 2022,” Durham wrote.

Durham’s apparent misremembering of Baker’s cell phones comes months after his office filed charges against Sussmann. The revelation raises serious questions about how far Durham’s team went in investigating the Sussmann case before bringing charges, as his team continues to admit in court filings that they have been buffeted by new, easily obtainable evidence post-charging.

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