What's behind the controversy over the Durham investigation?

"The latest pleading from Special Counsel Robert [sic] Durham provides indisputable evidence that my campaign and presidency were spied on by operatives paid by the Hillary Clinton Campaign in an effort to develop a completely fabricated connection to Russia. … In a stronger period of time in our country, this crime would have been punishable by death."

— Former President Donald Trump, in a statement, Feb. 12

It’s not every day that a former president suggests that his political opponents should be executed. But ever since Trump in early 2017 falsely accused former President Barack Obama of spying on him, based on sketchy, anonymously sourced reports, he and his allies have sought to somehow make the claim come true. (Never mind that now the claim is against the Clinton campaign.)

The latest "evidence" comes via a court filing by special counsel John Durham, who was tasked by former Attorney General William P. Barr to investigate the roots of the FBI counterintelligence investigation into the Trump campaign. Since being appointed special counsel 16 months ago, after a preliminary investigation lasting 17 months, Durham has filed two indictments. Every subsequent court filing is scrutinized carefully by right-leaning media, sometimes in misleading ways.

For instance, Fox News has reported that Durham alleged that Clinton’s "presidential campaign in 2016 had paid to ‘infiltrate’ servers belonging to Trump Tower and later the White House." But the word "infiltrate," even though it is in quotes, appears nowhere in Durham’s filing. Instead that word comes via Kash Patel, a former Trump administration official who offered his own spin on the document.

The Durham filing says much less than what Trump claims. Thus far, Durham has not charged anyone with spying on Trump. In fact, the statute of limitations has already expired for a key meeting cited in the filing.

Here’s a guide for the perplexed.

What’s this about?

In September, Durham charged Michael Sussmann, a former federal prosecutor with expertise in computer cases, with lying to the FBI during a meeting in 2016. The indictment alleged that he told the FBI he was not acting on behalf of clients when in fact, the indictment said, he was secretly acting on behalf of Clinton’s political team. Sussmann has pleaded not guilty, and his lawyers have denied he ever said he had no clients.

Why did Sussmann meet with the FBI?

On Sept. 19, 2016, Sussmann told James Baker, general counsel at the FBI, that cybersecurity researchers had found possible evidence of a secret communications channel between computer servers associated with the Trump Organization and with Alfa Bank, a Kremlin-linked financial institution. The researchers allegedly had been enlisted by someone identified in the indictment as Tech Executive-1 and was later revealed to be Rodney Joffe, an internet entrepreneur who founded the world’s first commercial internet hosting company. Joffe, who has not been charged, had hired Sussmann in February 2015 "in connection with a matter involving an agency of the U.S. government," according to the indictment.

The FBI investigated Sussmann’s tip but concluded that it was not suspicious at all. The indictment said agents found that the computer in question "was not owned or operated by the Trump Organization, but, rather, had been administered by a mass marketing email company that sent advertisements for Trump hotels and hundreds of other clients."

What is the connection to the Clinton campaign?

Sussmann worked for Perkins Coie, which was employed by the Clinton presidential campaign. The indictment claims that in Perkins Coie internal paperwork, Sussmann billed his time with Baker to the Clinton campaign. He also billed much of his time on the Alfa Bank matter to the Clinton campaign, according to the indictment. But Sussmann’s lawyers have said the billing records are misleading because the Clinton campaign received a flat retainer so the hours did not result in additional charges.

In a later filing in October, Durham appeared to acknowledge that he did not have evidence that Sussmann ever spoke directly to the Clinton campaign about Alfa Bank. Instead, he suggests that such communications took place via another Perkins Coie lawyer who was general counsel for the Clinton campaign. A Durham spokesman declined to comment.

Why does this matter?

Trump and his allies have charged that the Clinton campaign ginned up allegations of connections between Trump and Russia in the months before the election, leading to negative news stories and improper federal investigations.

Multiple investigations have found clear evidence of the Russian government’s efforts to intervene in the 2016 election on the side of Donald Trump. But special counsel Robert S. Mueller III could not find evidence of a conspiracy between Trump and the Kremlin; he merely concluded that the campaign was opportunistic about apparent assistance from Russia.

Meanwhile, the Clinton campaign has been connected to negative media reports during the campaign about Trump and Russia. A former British intelligence agent, Christopher Steele, working under contract for a private investigation firm at the behest of Clinton’s campaign, actively pitched his findings to news reporters, even though his reports later turned out to be poorly sourced.

So far, there is no evidence that the Clinton campaign directly managed the Steele reporting or leaks about it to the media.

Where does the ‘spying’ claim come from?

Durham on Feb. 11 asked the court to examine what he called potential conflicts of interest regarding Sussmann’s counsel, Latham & Watkins. As part of that document, he took the opportunity to raise new allegations, though no new crimes were claimed.

One claim — the source of the "spying" allegation — is that Durham has evidence that Joffe and his associates "exploited" domain name system (DNS) internet traffic at an unnamed health care provider, Trump Tower, Trump’s Central Park West apartment building, and "the Executive Office of the President of the United States."

DNS information shows what a person has been doing on the internet, such as browsing activity. Companies and government offices use special-purpose DNS providers that might monitor for suspicious traffic or filter out potentially dangerous web addresses that include typos.

The indictment added that Joffe’s employer "had come to access and maintain dedicated servers for the EOP as part of a sensitive arrangement whereby it provided DNS resolution services to the EOP. Tech Executive-1 and his associates exploited this arrangement by mining the EOP’s DNS traffic and other data for the purpose of gathering derogatory information about Donald Trump."

The indictment does not make clear the circumstances of the White House contract, but Durham appears to be claiming the company kept track of the web addresses that internet users at the White House were visiting. It is unclear whether such monitoring might have been part of the original contract.

Moreover, contrary to much of the reporting in right-wing media, Durham does not specifically say the alleged monitoring of EOP took place while Trump was president — and the circumstances suggest it took place in 2016.

"The Special Counsel has again made a filing in this case that unnecessarily includes prejudicial — and false — allegations that are irrelevant to his Motion and to the charged offense, and are plainly intended to politicize this case, inflame media coverage, and taint the jury pool," Sussmann’s lawyers charged in a response filed with the court Monday night.

A spokesperson for Joffe also denied any nefarious intent in a statement to the Fact Checker.