According to former U.S. Attorney Barbara McQuade’s opinion piece through MSNBC, special counsel John Durham was assigned the task of looking into the origins of the FBI’s Russia investigation.
It’s difficult to see how Durham’s case against Washington lawyer Michael Sussman, which he filed on Thursday, meets Justice Department standards.
According to the indictment, Sussmann met with FBI General Counsel Jim Baker in September 2016 to provide information about connections between a Russian bank and the Trump Organization.
The FBI was unable to substantiate any links between Alfa Bank and former President Donald Trump’s businesses, but the charge against Sussman — making false statements to the FBI — does not allege that the information was false in its entirety.
Sussmann, on the other hand, is accused of misrepresenting who he was providing it for.
To produce an indictment, a grand jury merely needs to determine probable cause that a crime was committed, but DOJ policy requires a higher bar.
A prosecutor should determine “that the admissible evidence will probably be adequate to secure and sustain a conviction” before putting a person through the expense, stress, and shame of criminal charges. This case falls far short of that criterion.
Let’s begin with the simple one: acceptable evidence. The handwritten notes of an assistant director with whom Baker spoke after his meeting with Sussmann appear to be used in the indictment. Among other things, the notes read, “Said not doing this for any client.”
When information is repeated, it frequently changes. Instead, trial testimony must be based on firsthand observation. If the prosecution tried to use these notes as evidence, or even the writer’s testimony about what he heard Baker say before he wrote them, it would almost certainly be deemed hearsay.
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On the merits, the argument is equally weak. Although making false statements to an FBI agent is a serious charge, the government must be able to show each aspect of the offense. At least two of the five elements cannot be met in this case.
First and foremost, Sussmann insists that he did not make the statement. Many defendants deny wrongdoing, but this time it might work. In most false statement cases, the exact language of the statement at question is captured in some way, such as a transcript of oath testimony, a written submission, or a recorded spoken statement. If not, the federal agency will normally offer two or more witnesses who heard the statement personally. In this case, it appears that the entire case is based on the testimony of one witness, Baker. And in a he said, he said debate, the defendant wins.
Furthermore, it is unclear if Baker will be a credible – or even willing – witness. Baker stated in a closed-door conference with Congress in 2018 that he did not recall Sussmann representing himself as working on behalf of the Democratic Party or Hillary Clinton’s presidential campaign. In the absence of all other evidence, the star witness was hardly necessary to convict.
Even if the prosecution can prove that the statement was false, that Sussman willfully lied, and that the crime falls under the jurisdiction of the FBI, materiality cannot be established.
The materiality requirement necessitates demonstrating that the statement has the potential to influence a topic under discussion; not every false statement is a criminal, only those that matter.
If Sussmann had also boasted to Baker that he runs a six-minute mile when, in fact, he runs a ten-minute mile, that statement would be untrue, but it would be unimportant to the case at hand.
The indictment contends that Sussmann’s declaration that he was not operating on behalf of any client was important because the FBI would have viewed the information differently if it had known Sussmann was providing the information on behalf of the Clinton campaign.
This charge, however, is rejected by its own witness. Baker was asked in 2018 congressional testimony whether it would have mattered if Sussmann had told him he was there on behalf of the Clinton Campaign. He replied it wouldn’t, which was a devastating revelation in Durham’s case.
Sussmann also worked for the Perkins Coie law firm, whose representation of the Clinton campaign was widely publicized. According to the assistant director’s notes, Sussmann did tell Baker that he “represents DNC, Clinton Foundation, etc.”
So, even if Sussmann misrepresented his motivation for bringing the information to the FBI that day, Baker knew Sussmann was a Clinton supporter.
Sussmann had provided all of the facts required for the FBI to generate that suspicion if it was going to take material from Clinton’s team with skepticism. As a result, his purportedly fraudulent assertion is, at best, the equal of the ten-minute mile, irrelevant to the problem at hand.
The claim of materiality in this case is especially galling in light of the DOJ’s treatment of former National Security Advisor Michael Flynn. Flynn was charged with making false statements by special counsel Robert Mueller after lying to the FBI about his talks with the Russian ambassador in late 2016.
Under former Attorney General William Barr, the U.S. Attorney’s Office in the District of Columbia submitted a motion to dismiss the indictment on the grounds that Flynn’s statement was irrelevant. While the criterion for materiality is normally low, the different standard that Durham — whom Barr appointed — has set for Sussman today shows that he is being punished unfairly.
So why would Durham bother filing charges in a situation so fraught with complications? One hint is the date of the indictment. It was filed on the final day of the grand jury’s term, before the five-year statute of limitations expired on September 19.
The fact that this case and a previous case against an FBI lawyer for changing an email are the only charges Durham has filed shows that this is the closest thing to a crime he has uncovered in his hunt.
The level of detail given in the 27-page indictment is another indicator as to why this case is being filed. It describes the Clinton campaign’s efforts to conduct opposition research on former President Donald Trump, most of which goes beyond the bounds of the extremely narrow violation filed against Sussmann.
Durham may be using this indictment to spread what he has discovered to the public so that Trump and his allies may establish a false equivalence between the Trump and Clinton camps.
Mueller discovered that the Trump campaign shared polling data with a Russian intelligence operative, met with Russians to collect information on Clinton, and coordinated messaging in the aftermath of the exposure of stolen email exchanges.
With this charge, Trump may now argue that it was Clinton who initially provided information to the FBI about Russian ties, and that the Mueller probe was a fraud.
That brings us to the final issue with Durham’s study: his task was to look into the genesis of the Russia investigation.
The DOJ inspector general already determined that the July 2016 inquiry was appropriately based on intelligence received from a government ally about claims made by Trump campaign advisor George Papadopoulos about stolen email exchanges. Sussmann’s statement months later could not have prompted the Russia probe.
Durham probe is heating up. Follow the only true insider account of the biggest political scandal in American history. Stay ahead of the headlines coming https://t.co/yLe2q1TBon
— George Papadopoulos (@GeorgePapa19) September 20, 2021
Instead than a desire for justice, the indictment appears to be another another salvo in the information war. Attorney General Merrick Garland had the authority to prevent this indictment from being filed, but he did not, possibly because he believed it was a valid charge — or perhaps because he feared that stopping it would give the appearance that he was acting in furtherance of partisan political interests.
While preserving the institution’s independence is a worthy goal, it cannot be achieved at the expense of an innocent man being exploited as a pawn in a nasty political game that will further erode trust in our institutions.
This did not age well…
— Todd Campbell (@ToddCPAESQ) September 17, 2021
The Mueller Report details all of the reasons why the Russia inquiry was not a hoax. The only hoax in this indictment is the charge.