Michael Sussmann, the Democratic-aligned attorney, was indicted in September 2021, days before the five-year statute of limitations would have expired.
The charge is narrow, and has generated outrage for the bizarre circumstances under which Special Counsel John Durham, appointed by Attorney General Bill Barr, brought it.
Durham alleged that Sussmann lied to the FBI on Sept. 19, 2016, accusing the attorney of misleading the bureau’s general counsel about one thing: whether he was delivering information on behalf of a client, or independently.
Prosecutors working for Durham contend that Sussmann lied, and that he — while secretly in the employ of the Clinton campaign and a tech executive named Rodney Joffe — sent the FBI on a wild goose chase that morphed into the grander tale of Trump-Russia collusion.
Assistant U.S. Attorney Andrew DeFilippis, a Durham prosecutor, described Sussmann’s alleged crime as part of a bigger conspiracy to drum up press attention about links to Russia, “get the government to investigate it,” and then to “get the press to report the government was investigating.”
Sussmann, who has suggested that the prosecution is politically motivated, goes to trial on Monday. The trial is not so much a test of Durham’s unified theory of the Trump-Russia scandal, but, rather, an examination of whether a charge on such a narrow and arcane topic will pass muster with a jury, potentially spurring Durham to issue further indictments.
Origin story
Barr first appointed Durham in May 2019 to conduct a noncriminal review of the origins of the Trump-Russia investigation. It was in the immediate aftermath of the end of the Mueller investigation, with Trump supporters — and his spokesperson — calling to investigate the investigators.
“After two years of [investigations] and being vindicated, and now in fact the tables are turning in that the investigators will be investigated, there’s a certain amount of righteous indignation that’s warranted,” Tim Murtaugh, Trump’s communications director, said at the time.
Barr upgraded Durham’s appointment, giving him special counsel status weeks before the 2020 election. Since then, the former Connecticut U.S. Attorney has brought two cases: Sussmann, and that of a D.C. researcher involved in the Steele dossier.
Targeting Sussmann
Sussmann’s indictment and subsequent arguments from Durham’s team have breathed new life into conspiracy theories on the right
Much of this has to do with Durham’s own choices in writing the indictment: the document includes long, uncharged descriptions of alleged wrongdoing by Joffe, the tech executive, and of the supposed involvement of the Clinton campaign. It’s not until page 18 of the document that we arrive at the alleged crime: Sussmann allegedly telling FBI General Counsel James Baker that he was not offering information “on behalf of any client.”
The tip that Sussmann offered had to do with analysis of internet data which he said showed a Trump Organization server was secretly communicating with Alfa Bank, a Russian-owned financial institution. Those claims have mostly been discredited.
‘Not charged with a conspiracy’
On the narrow claim of false statements, Durham has produced a text message in which Sussmann told Baker, “I’m coming on my own — not on behalf of a client or company — want to help the bureau.”
But the prosecution has been suffused with claims of a broader conspiracy that far outstrip the narrowness of the crime for which Sussmann was charged.
“Mr. Sussmann is not charged with a conspiracy,” U.S. District Judge Christopher Cooper for the District of Columbia, the presiding judge in the case, recently wrote in an order laying out what evidence can be presented at trial.
In that decision, Cooper blocked evidence that Sussmann was part of a so-called “joint venture” that involved the Clinton Campaign, investigations firm Fusion GPS, and others.
“While the Special Counsel has proffered some evidence of a collective effort to disseminate the purported link between Trump and Alfa Bank to the press and others, the contours of this venture and its participants are not entirely obvious,” Cooper wrote.
Cooper did allow other, broad categories of evidence to make it to trial: part of Sussmann’s argument has been that the question of whether he was there on behalf of a client wasn’t material to the FBI’s investigation. A lie has to have a material impact on government function to be considered a crime.
Cooper has allowed Durham to present some evidence in favor of that, including emails from Fusion GPS and other internet researchers urging reporters to write about the story because, in Cooper’s words, they go to the “ultimate goal of disseminating the Alfa Bank allegations to the press.”
Sussmann prepares for trial
Sussmann, for his side, has sought to call former New York Times reporter Eric Lichtblau testify. Lichtblau wrote an October 2016 article that Durham referenced in the indictment. The article claims that the FBI saw “no clear link to Russia.”
Lichtblau had also communicated with Sussmann one month earlier — right before he allegedly made the lie to the FBI.
Lichtblau, in concert with New York Times attorneys, has agreed to testify — so long as the questioning remains limited to Lichtblau’s discussions with Sussmann.
Durham, however, appears to have objected to that. Per a filing from Lichtblau, Durham not only wants to retain the right to question the former reporter about other interactions apart from those with Sussmann, the investigation has already obtained some “communications” involving Lichtblau and others.
“The prosecution might want to examine Mr. Lichtblau about other, unknown aspects of his reporting,” Lichtblau wrote in the filing, relaying what a Durham prosector purportedly told him.
The trial begins on Monday. If Durham secures a win, it’s not clear what would come next.
As Harry Sandick, a former federal prosecutor, told me, the case that Durham made against Sussmann doesn’t quite match up with traditional up-the-chain prosecutions, in which lower-level defendants flip on higher-ups.
““It seems to me less like a logical first step in an up-the-chain prosecution, and more like an attempt by a prosecutor to justify a tremendous amount of time and expense in an investigation,” he said.
Durham, however, appears to have objected to that. Per a filing from Lichtblau, Durham not only wants to retain the right to question the former reporter about other interactions apart from those with Sussmann, the investigation has already obtained some “communications” involving Lichtblau and others.
Lichtblau and the NYTimes are known to be hiding elements of a Hunter Biden plot to fire a hurricane gun at Mar-a-Lago.
Yeah, they’re not going to get enough smoke from this to cover the Jan 6 spectacle. D’oh.
This is going to be a really embarrassing and spectacular failure of a criminal prosecution. Durham’s brain has been melted by Fox News, and his theory of the case has more holes than the New York City sewer system.
ETA: Let me expound upon that.
Durham has charged Sussman with lying to the FBI. The alleged lie is that Sussman supposedly said on September 19 that he was not acting on behalf of a client when he brought a hot tip to the FBI’s general counsel that a Trump Tower server was in contact with a Russian bank. Durham alleges that Sussman was actually secretly acting on behalf of the Hillary campaign, and that this alleged lie is important because if the FBI had known that it was Hillary behind the hot tip about Trump being in contact with the Russians, they just would have ignored it. Or something. In any event, the hot tip didn’t check out, but therefore dodgy dossier and Trump definitely didn’t collude with Russia, no sirree.
That’s the case. It’s Underpants Gnomes material, and I’ll be deeply disappointed if Sussman’s attorneys don’t explicitly use the term “Underpants Gnomes” before their client is acquitted.
But wait, there’s more!
The guy Sussman allegedly lied to was the FBI’s general counsel, James Baker (no, not the Bush family consigliere). Baker supposedly told a couple of other FBI guys tasked with following up on the hot server-on-server action tip that Sussman wasn’t reporting it on behalf of any client, and their notes record that statement. But their notes are hearsay and aren’t ever going to see the light of day in this trial. But then Baker goes in front of a congressional committee and testifies under oath that Sussman said he was reporting on behalf of a client. But now, 5+ years later, Durham assures us all that Baker’s memory has been refreshed, and he’s going to testify that Sussman definitely, totally, unambiguously stated that nope, he wasn’t reporting on the Trump server on behalf of any client.
Also, the FBI has abundant documents reflecting that it knew Sussman was working for Hillary, the DNC, and basically every Democrat you would otherwise care to name.
It gets stupider from there. For instance, there’s an email from Sussman to Baker on September 18 where he plainly says he’s not wanting to meet on behalf of a client, but that isn’t charged as a lie because Durham is so goddamned incompetent that he didn’t know about it and instead got Sussman indicted on the last day of limitations for the September 19 meeting.
By the way, this whole thing is supposed to show that Fat Donnie Two Scoops was unfairly targeted for the Russia investigation by those rascally Dems, when the actual investigation into Russian interference in the 2016 election and Trump’s complicity with it began months earlier. Crossfire Hurricane, bitches.
ETA2: Next week is going to establish exactly why Merrick Garland and Lisa Monaco allowed Durham’s investigation and prosecution to continue: Because it was always going to faceplant, and a Durham faceplant is far more definitive than handing Republicans a “coverup.”
A complete an utter waste of time and taxpayer money. Even if he succeeds in getting a conviction, Durham will have no more luck proving his conspiracy theory than to establish the the Sun rises in the West. He’s just another hack trying to get in the good graces of the DFP.
A sh_tshow wrapped in a clusterf_ck.