RUTHFULLY YOURS

D efense counsel for Michael Sussmann, the former Perkins-Coie lawyer indicted by Russiagate special counsel John Durham for lying to the FBI, now claim that information they have received in pretrial discovery substantially undermines the prosecution’s case.

In the one-count indictment, filed in mid September, Durham alleges that Sussmann misleadingly concealed the identities of his clients when he brought the FBI information that then-presidential candidate Donald Trump was secretly communicating with the Kremlin.

According to the indictment, Sussmann told the bureau’s then-general counsel, James Baker, that he was not representing any client. This is now said to have been false because Sussmann was representing both the campaign of Trump’s rival, Hillary Clinton, and a cyber expert who was hoping to land a top tech job in the anticipated Clinton administration. At the meeting, Sussmann told Baker that Alfa Bank, a major Russian financial institution, was the conduit for Trump-Kremlin communications, with its servers transmitting messages to and from a server at Trump Tower in Manhattan. The FBI looked into the Alfa Bank allegation and ultimately rejected it.

According to the New York Times, Sussmann’s attorneys claim that prior statements by Baker indicate that he knew Sussmann was representing clients. At a minimum, he has said different things at different times. The critical September 19, 2016, meeting between Baker and Sussmann was short – less than 20 minutes in all – and they were the only two people in the room. The false-statement charge thus hinges on Baker’s memory; because it appears faulty, Sussmann’s lawyers contend that the prosecution will not be able to prove the case beyond a reasonable doubt.

The dispute has emerged as the two sides also tussle over the prospective trial date, with Sussmann pressing for a relatively prompt trial in May, and Durham preferring a July date. This reflects the two sides’ divergent interests. If Sussmann believes the case against him is weak, he doesn’t want to give Durham more time to shore it up. The prosecutor, on the contrary, is still pursuing other aspects of his investigation, as well as preparing for the separate trial of Igor Danchenko, the principal source of information for the discredited Steele dossier, whom Durham has also indicted for lying to the FBI. At a status conference in Washington, D.C., on Wednesday, U.S. district judge Christopher Cooper indicated that trial would likely commence in May or June.

Times reporter Charlie Savage recounts that, in 2018 congressional testimony, Baker said he did not remember Sussmann “specifically saying that he was acting on behalf of a particular client.” The following year, Baker was interviewed in one of Justice Department inspector general Michael Horowitz’s investigations of the FBI. In that session, Baker recalled Sussmann’s having brought him information “that he said related to strange interactions that some number of people that were his clients, who were, he described as I recall it, sort of cybersecurity experts, had found” (emphasis added).

Almost a year later, in June 2020, Baker was interviewed by Durham’s investigators. According to the notes of that session:

Baker said that Sussmann did not specify that he was representing a client regarding the matter, nor did Baker ask him if he was representing a client. Baker said it did not seem like Sussmann was representing a client.

Meantime, the Times further reports, internal FBI emails circulated prior to the meeting included such statements as “Sussmann said he represents a client who does not want to be known,” and that “the plan should be to convince Sussmann that it is in his and his client’s interest to go to the FBI.” A draft FBI memo prepared after the meeting also alluded to Sussmann’s having a relevant client. At Wednesday’s status conference, a prosecutor represented that the reference to a Sussmann client in the draft memo was in error and had been corrected in later drafts. Otherwise, the prosecutor declined to be drawn into “a full factual debate” about the evidence and did not address references in the FBI emails to a Sussmann client.

The indictment alleges that, when he met with Baker, Sussmann stated that he had been “approached by multiple cyber experts concerning” the Alfa Bank suspicions. It further alleges, somewhat opaquely, that Sussmann “led the FBI general counsel [Baker] to understand” that he was conveying the Alfa Bank allegations “as a good citizen and not as an advocate for any client.” Immediately after meeting Sussmann, Baker briefed Bill Priestap, then a top FBI counterintelligence agent, about the meeting. According to Priestap’s notes, Baker reported that Sussmann said he was “not doing this for any client.”

The indictment says that, in fact, Sussmann was then representing a client, referred to in the charging document as “Tech Executive 1.” The client has since been identified in public reporting as Rodney Joffe, who appears to have been the main driver of the Alfa Bank suspicions. Joffe was a supporter of Hillary Clinton, whose presidential campaign was represented by Sussmann’s firm Perkins Coie — the client account to which Sussmann billed his time for work on the Alfa Bank matter.

Some observations are worth making here.

First, I argued about a month ago that the exuberance over Durham’s indictments of Sussmann and Danchenko, particularly among Trump supporters, was, if not irrational, then exaggerated. Durham may well be convinced that the Trump–Russia narrative was a hoax and that the Alfa Bank angle was similarly bogus, and I expect he will eventually file a narrative report that says as much. His indictments, however, make no such claim. Instead, they narrowly allege that the defendants lied to the FBI only about the identity or status of people from whom they were getting information, not about the information itself. It is therefore irrelevant to Durham’s prosecutions whether the Trump–Russia narrative was true or false.

Regardless of how the Sussmann prosecution turns out, it cannot be gainsaid that the alleged false statement — a lie about the identity of a lawyer’s clients — seems trivial compared to the issue that prompted Durham’s probe: the origins of the Trump–Russia investigation, which portrayed a presidential candidate, and later president, as a suspected clandestine agent of a hostile foreign power.

Second, far from citing the FBI for conspiring against Trump or providing fraudulent information to the court, Durham’s theory is that the FBI was duped. As we’ve discussed (including on The McCarthy Report podcast), this is a risky strategy for Durham. To this point, particularly after the inspector general’s investigations (e.g., here), a big problem seems to have been that the FBI, at the highest level (which is the level at which Baker was operating), was so predisposed to believe derogatory information about Trump that, at best, it failed to perform rudimentary investigative steps to evaluate the derogatory information it received — although, to repeat, the bureau did look into and reject the Alfa Bank claims.

It was already going to be tough for Durham to prove beyond a reasonable doubt that the FBI was misled, rather than that purveyors of anti-Trump information were pushing on an open door. It will be even tougher to prove a case of lying under circumstances where Baker, the official allegedly lied to, was not especially curious about whether Sussmann was working for a client; Baker may have been uncertain — precisely because it wasn’t that important to him — whether Sussmann was coming to him on behalf of cybersecurity experts who had merely reached out to him, or on behalf of a particular cybersecurity expert whom he was formally representing.

Third, this raises not one but two serious proof problems for Durham. First, the prosecutor must prove what was said, under circumstances where Baker’s memory may be sketchy. Second, the sketchiness of Baker’s memory strongly suggests that, at the time, it was of little moment to Baker whether Sussmann had come to him on behalf of a client; yet Durham must prove beyond a reasonable doubt that Sussmann’s allegedly false statement was material. To put it mildly, Baker does not appear to have acted like it was material: By his own account, he did not press Sussmann on the matter, and there is so far no public claim that any other FBI official involved in the Alfa Bank probe followed up with Sussmann.

Moreover, as Sussmann is sure to point out, everyone in Washington knew he was a lawyer for the Democratic Party. In fact, he had represented the DNC in connection with its hacked servers, a matter that was of great significance to the FBI, including in connection with the Trump–Russia investigation.

Before working at Perkins Coie, Sussmann had been a cybersecurity lawyer for the Justice Department. He and Baker knew each other for years and had a cordial relationship. In fact, the notes of Durham’s 2020 interview with Baker indicate that the former FBI general counsel interviewed for a job at Perkins Coie (he did not end up working there — it’s not clear whether he got an offer). It seems obvious, then, the reason Sussmann dropped in on the FBI’s general counsel, rather than reporting the Alfa Bank suspicions to an investigating agent as would be customary, is that he had a personal relationship with Baker. Reciprocally, the reason Baker did not treat the meeting like a witness interview (which would ordinarily be conducted by two investigating agents, not a bureau lawyer — much less the top bureau lawyer) is that he perceived it as a friendly meeting among lawyers, not a formal investigative event. In any event, Sussmann is certain to contend that the question of whether he was representing a client was immaterial to Baker and the FBI because Sussmann’s Democratic Party ties were well-known and unhidden — and, unsurprisingly, he was there to peddle information that would have hurt Trump, and thus helped the Democratic campaign.

Fourth, this case appears to illustrate what critics most dislike about the felony offense of lying to investigators (the notorious section 1001 of the federal penal code).

For comparison purposes, let’s look at the very similar crime of perjury (section 1621). In the perjury situation, the witness is placed under oath so the wages of false testimony are made clear. There is almost always a contemporaneous, verbatim transcript, so there is no doubt about who said what. If there is any ambiguity regarding whether an answer was false, it inures to the benefit of the witness — i.e., even when witnesses are trying to mislead, there is no perjury if their statements are literally true. And if what is asked or answered is unclear or capable of different interpretations, the burden is on the interrogator, not the witness, to clarify the record. A person may not be convicted for perjury unless there clearly was an intentionally false statement.

In sharp contrast, cases involving false statements to investigators are not nearly as tight. Usually, the witness is not under oath and there is no contemporaneous transcript or electronic recording. The case hinges on the memories of the investigators about what was said. Agents use their handwritten notes (which are later whipped into a narrative “Form 302 report”), to aid their recollection, but the witness is not given an opportunity to review the notes or the 302 for accuracy and completeness.

It is no surprise, then, that this process lends itself to significant disagreements about exactly what was said. In Sussmann’s case, this could be an even bigger problem for prosecutors because (a) Baker was alone (i.e., there was no second FBI official on hand to take notes and testify about what was said), and (b) Baker was a bureau lawyer, not an agent (i.e., his FBI job was not to interview witnesses and conduct criminal or counterintelligence investigations).

Finally, I’d note that though he sought a job at Perkins Coie, Baker ended up working for a time at the Brookings Institution. Brookings is also where Danchenko worked (though not while Baker was there). As our editorial at the time Danchenko was charged pointed out, Brookings is a Clinton-friendly think-tank that has many intriguing connections to the Trump–Russia storyline.

Small world, Washington is. To put it mildly, this is going to be a very tough case for Durham.