Published by The Lawfare Institute
in Cooperation With
In the years since Donald Trump’s election, the former president’s supporters and opponents have often seemed to occupy entirely separate factual universes regarding both his conduct and the investigations of it.
In the factual universe occupied by Trump’s opponents, the former president serially engaged in the grossest of misbehavior, he was rightly subject to repeated investigations as a result, and he took aggressive and inappropriate actions to frustrate these investigations—leading to further investigative interactions.
Conversely, in the factual universe occupied by the former president’s supporters, a conspiracy to defame and discredit Trump—led by the Hillary Clinton campaign and including the campaign’s lawyers and investigators, the media and the FBI—developed during the 2016 campaign. The investigations of Trump during the campaign and subsequent to it were based not on any good faith belief, let alone any reality, that he or the people around him had done anything wrong. They were, rather, a “hoax”—a deliberate attempt to defraud the public.
These two competing worldviews have long existed on parallel planes. They show up at the same congressional hearings and compete for airtime. Viewers can switch between them with a click of a remote control. But they almost never actually confront one another.
Until, that is, the trial of a lawyer named Michael Sussmann, who was acquitted Monday morning by a federal jury in Washington DC. The Sussmann trial presented the closest thing we have seen to a simple showdown between these two worldviews.
On the one side was Special Counsel John Durham, appointed by former Attorney General Bill Barr to investigate wrongdoing in the Russia investigation, peddling a semi-respectable version of the Trumpist theory of the case.
On the other side was a lawyer facing a single charge of lying to the FBI, who argued at trial that he had tried to give the FBI a heads up about a weird new line of possible connection between Trump and Russia before it broke in the press.
The trial, concerning this sole alleged false statement at a single brief meeting, took two whole weeks to present to the jury.
It took that jury just six hours to reach a unanimous verdict of acquittal.
I have spent an inordinate amount of time with the Michael Sussmann case over the last few weeks. I watched a fair bit of it in person. And I read the rest of the case in the thousands of pages of trial transcripts.
The experience of the trial left me with three main impressions: First, that the case against Sussmann was not just weak but was frankly beneath the standards of reasonable federal prosecution; second, that the case was only glancingly about Sussmann and his supposed lie at all; rather, third, the case was fundamentally about displacing the conventional worldview associated with the Trump scandals and establishing the respectability of the insurgent Trumpist counter-narrative. In that effort, as with the effort to convict Sussmann, Durham has failed.
Not Just Weak
When the Sussmann case was filed, back in September, I described it as “one of the very weakest federal criminal indictments I have ever seen in more than 25 years covering federal investigations and prosecutions.” The experience of the trial itself only reinforced that impression. On Friday, after the jury went into deliberations, I tweeted that, “I would be stunned to see a conviction. And I would not be surprised at all to see an acquittal—even a fast one.”
My point here is not about my own perspicacity. A lot of people who followed the trial closely appeared to expect a quick acquittal as well. The case against Sussmann was not just weak; it was frankly deficient.
Durham charged Sussmann with lying to then-FBI General Counsel James Baker about whom he represented when he came to Baker with information about a supposed secret communications channel between the Trump organization and a Russian bank. (Disclosure: Baker is a personal friend and former colleague at Brookings and Lawfare, and some of his text messages to me were entered as evidence in the case.) As I summarized the matter back in September, the indictment concerns:
the story behind the Alfa Bank server saga—a dead-end thread you might recall from the larger Trump-Russia story—and the efforts by people associated with the Clinton campaign to get it in front of the FBI.
The Alfa Bank story was never a big part of L’Affaire Russe. Yes, there was a flurry of press investigation of it in the month before the election, but major press outlets treated it cautiously, as the gravamen of the allegations—that there was some secret link between Trump and Russia through a Russian bank—couldn’t be substantiated. Lawfare, for its part, wrote almost nothing about the matter as part of our extensive coverage of Trump-Russia ties. The reason, quite simply, was that the allegations never made a great deal of sense. For those who need a refresher, the basic issue was that some computer researchers noted what the Senate Intelligence Committee later described as “unusual internet activity connecting two servers registered to Alfa Bank, a Russian financial institution, with an email domain associated with the Trump Organization.” The researchers’ hypothesis was that this activity might suggest a secret line of communication between the bank and Trumpworld.
It didn’t, as the FBI later discerned. The whole thing had an innocuous explanation. As the inspector general put it, “The FBI investigated whether there were cyber links between the Trump Organization and Alfa Bank, but had concluded by early February 2017 that there were no such links.”
The problem was that when Sussmann brought the matter to Baker, according to prosecutors, he told Baker he was doing so not on behalf of any client but on his own behalf in an effort to help the FBI. In fact, Durham charged, Sussmann had two clients: the Hillary Clinton campaign, which Sussmann was also helping shop the story to the press, and a technology executive named Rodney Joffe, who had generated the Alfa Bank data in the first instance.
The case’s deficiencies were, broadly speaking, two-fold:
First, it simply is not clear to me—after considering all of the evidence—that Sussmann was actually lying to Baker.
To be clear, I do not doubt that Sussmann said to Baker what Durham charged him with saying. The defense made much of Baker’s inconsistent memory of and inconsistent statements about the meeting; fair enough. That is the defense’s job, and Baker’s memory has, indeed, changed over the years and over his many interviews on the subject with Durham and others. Given Baker’s centrality to the case, that fact alone might convince a reasonable juror to acquit—a point the defense emphasized in its closing argument. Remember, after all, that the entire case hinges on a single brief meeting between the two men, a meeting at which nobody took notes and to which there are no other witnesses.
That said, the late emergence of the text exchange between Baker and Sussmann several weeks ago in which they arranged the meeting in the first place significantly corroborates Baker’s current certainty that Sussmann told him specifically that he was coming to the FBI on his own and not on behalf of either the Clinton campaign or on behalf of Joffe.
“Jim,” Sussmann texted, “It's Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. Do you have availability for a short meeting tomorrow? I'm coming on my own—not on behalf of a client or company—want to help the Bureau. Thanks.”
This text emerged, significantly, after the indictment—that is, after Baker had recalled that Sussmann told him the same thing at the meeting itself. So the text exchange bolsters confidence in Baker’s otherwise-shaky memory.
That said, it is a far cry from establishing that Sussmann lied. Because while there is no doubt that Sussmann had both the Clinton campaign and Joffe as clients, and while there is no doubt either that he was working with both to get the Alfa Bank story to the press, after two weeks of testimony, it is not clear—at least not to me—that Sussmann was, in fact, visiting Baker on behalf of either of them.
The prosecution sought to use Sussmann’s law firm billing records to show that the entire Alfa Bank project was conducted on behalf of the Clinton campaign. But both the general counsel of the campaign (Marc Elias) and the campaign manager (Robby Mook) specifically denied that the campaign had dispatched Sussmann to the FBI or authorized him to bring the Alfa Bank matter to law enforcement. Both, in fact, cast doubt on whether it was in the campaign’s interest for him to involve the FBI. Elias testified that he thought going to the FBI might slow down getting the story in the press. And Mook testified that the campaign deeply distrusted the FBI and would not have wanted it involved. The evidence that Sussmann approached Baker on Joffe’s behalf was scant as well.
Indeed, following the trial, it seemed—at least to me—as though the best explanation for Sussmann’s behavior was a rather simple one: Yes, Sussmann was working with the campaign and Joffe and the dreaded Fusion GPS—the investigative firm responsible for commissioning the so-called Steele Dossier—to get the Alfa Bank story to the press. But he was sufficiently alarmed by the Alfa Bank data that he decided along the way that he needed to let the FBI know as well.
Sussmann’s clients knew about these plans; he did not go to law enforcement behind their backs. Joffe knew of his plans and Elias testified that Sussmann notified him too, though probably after the fact. But he also did not go to Baker pursuant to their instructions or in furtherance of their interests. So he told Baker that he was there on his own, not on behalf of any client.
I emerged from the trial not just believing that a reasonable doubt existed as to whether Sussmann lied but believing that this story, and not that Sussmann was lying, was the most likely explanation for his conduct. The FBI, the defense showed, knew that Sussmann had clients associated with the Democratic Party and records showed that he was reasonably candid about his clients and their involvement in the matter in a variety of other contexts. My best sense of the evidence, taken as a whole, is that Sussmann was trying to distinguish between his clients’ interests, which were to develop the story and get it in the press, and his own desire to get the matter in front of the FBI. There’s a difference between having clients and doing something on behalf of those clients. Durham certainly proved beyond a reasonable doubt that Sussmann had clients, a fact Sussmann never denied. But the prosecution seemed to regard this as all it needed to prove. It wasn’t.
Whether I’m right about my reading of the evidence or not, this was simply not a case that in the normal course of business, federal prosecutors would bring. Sussmann brought the FBI a tip—one that didn’t pan out, but that there is no reason in the world to believe he did not think was a serious matter. Durham indicted him not for the falsity of the tip but for the supposed falsity of ancillary comments. It simply isn’t clear that Sussmann was actually lying about those.
It also isn’t clear that any of it made the slightest bit of difference. A lie has to be “material” to be a crime under the law. And the prosecution spent a lot of energy trying to show that Sussmann’s supposed lie was actually material—that is, that it could have made a difference to the FBI’s handling of the matter. And yes, it is clear that Baker took the matter seriously because he took Sussmann seriously. There is no reason to doubt him when he says he might have taken him less seriously had he known that Sussmann had client interests in the matter and was representing the Clinton campaign.
But the truth of the matter is that, according to the evidence presented at trial, the FBI’s investigation of the Alfa Bank issue was pretty cursory. A bunch of the line agents who conducted it didn’t know where the information had come from. And the whole matter was dismissed rather quickly anyway. While some agents testified that it would have mattered to them if they had known that the information came from campaign opposition research, they also said that they would have performed exactly the same technical analysis had they known. While this may not make the matter immaterial as a matter of law, it just wasn’t reasonable for Durham to expect a jury to convict on this basis. If you have to spend hours and hours trying to persuade a jury that something matters, it’s because its importance is less than obvious.
Not Really About the Lie
One of the striking things about the Sussmann case is how little of it actually had to do with Sussmann’s supposed false statement at all.
If Durham had been narrowly bent on holding Sussmann accountable for his alleged lie to Baker, all he had to do was to prove that Sussmann made that single false statement to Baker and that he did so intending to mislead him and in a fashion that had some capacity for material consequence. This required Baker’s testimony. Perhaps it also required one of the corroborative witnesses who took notes on Baker’s follow-up. It required a witness to get the billing records into the record, and it required a limited amount of background to establish Durham’s theory of Sussmann’s motive.
Here’s what proving the case against Sussmann, if that was possible at all, certainly did not require:
It did not require that Durham put on evidence about Fusion GPS or its interactions with the press.
It did not require that he do a deep dive into how the FBI investigated the Alfa Bank matter, which took place, after all, after the alleged lie.
It did not require Durham to show how Joffe collected the data in the first place or how his employees felt about being asked to assemble it.
And it did not require Durham to put on evidence about how Sussmann, months after the meeting with Baker, brought the same matter to the CIA.
Indeed, a huge percentage of the many hours of testimony given in this case related to Sussmann’s alleged lie—which, remember, is the only offense charged in the indictment—in the most glancing sense. You could watch hours upon hours of testimony and completely forget that this was supposed to be a case about a lie told in a brief conversation between two men with nobody else present at a single meeting six years ago.
You can see this point in the text of the indictment itself. The document is 27 pages long. And it takes Durham until the eighteenth page before he bothers to discuss the charge that he is alleging. By the twenty-first page, he is on to other uncharged conduct.
My point here is that Durham was not merely trying to prove that Sussmann made a single false statement to Baker. He was trying to prove a much larger conspiracy that he details but does not charge. The alleged lie was merely the aspect of this supposed conspiracy that he could find a way to charge. His purpose here, in large part, was evidently to tell this larger story.
The more sophisticated of Durham’s advocates actually acknowledge this point:
Durham knew prior to bringing the case on the very last day prior to the SOL running out that the case was going to be difficult to win given the evidence and the venue. But he brought it anyway.— Shipwreckedcrew.substack.com (@shipwreckedcrew) May 31, 2022
But thru the case he established in the public record the existence of the plot.
But here is where the Sussmann trial becomes a direct clash of these two basic factual worldviews. Because reading and watching the trial, I was struck by how uncriminal the whole broader “conspiracy” to do opposition research and feed dirt to the press seemed to be. To me, at least, it all read like garden-variety campaign opposition research.
Sleazy? Sure. But that’s why I’m not an opposition research guy.
As Tim Miller recently wrote in the Bulwark, “As a former Republican opposition research aficionado, I can testify that passing along not-fully-verified information to journalists in the hopes that they could suss out more details is a time-honored, bipartisan practice.” The added factor of going to the FBI doesn’t make such ordinary practice criminal either. The only alleged crime in this whole mess of activity is the lie itself.
To put it simply, the evidence simply doesn’t read, at least not to me, like something you uncover in a lengthy speaking indictment using a false statement case as a hook.
It apparently didn’t seem that way to the jury either. As the jury forewoman put it to NPR in the trial’s wake, "I feel like we could have spent our time more wisely."
What It’s Really About
Indeed, if you imagine the Sussmann case was merely about the single lie Durham alleged, the trial was a colossal waste of everyone’s time. The poor jury forewoman and her colleagues were dragged through a two-week trial to determine not whether Sussmann provided accurate or inaccurate information to the bureau but to determine whether he was candid about whether he had client interests at issue in doing so or not. Durham’s own prosecutors invested countless hours in this case. Witnesses were yanked from other cities to testify about this. And Sussmann himself has had to leave his firm and lost a year of his life and heaven only knows how much money—and faced the possibility of a criminal conviction over the matter. Quite apart from any question of materiality as a technical matter, why would anyone care enough about such a lie to bring a case like this?
The answer, I think, goes back to the essential conflict between narratives. The Sussmann case was an attempt to supplant what we might call the standard model of L’Affaire Russe—in which there were real relationships between Trump and Russia that appeared during the 2016 and required investigation—with the insurgent model, in which the more important story than the Trump-Russia relationship was the conduct of the investigation of it.
Former Attorney General Bill Barr is candid in his recent memoir that this is what he believes. The Mueller investigation, he writes, was the less important half of the Russia probe that needed to be conducted. The more important half, Barr contends, is the investigation of how the Russia investigation happened.
I don’t know precisely what Durham believes with respect to this question. Unlike Barr, he hasn’t written a book that explains his thinking. But using an alleged lie whose consequence the prosecutor struggled to establish, in order to unravel a lengthy story about how opposition research made its way to the press and to the FBI and how the FBI then investigated those allegations certainly reads like he buys Barr’s essential contention that Trump was more sinned against than sinning.
There is, however, a problem with using the federal criminal process to supplant the standard model with the insurgent model: federal courts require evidence of the commission of an actual crime. And the insurgent model of L’Affaire Russe, for all that it has caught on in recent years, remains singularly unfounded.
Unlike when one writes about the “Russia Hoax” in The Federalist or when one spouts about it on Fox News or when Barr writes about it in his endless book, when federal prosecutors indict someone for a crime—that is, when they use the criminal process to advance such a narrative to the public—they do have to prove things to a jury. Mueller, for his part, brought a bunch of cases. He lost none of them, though Trump nixed a few using pardons and a group of other cases have never gone to trial because defendants were overseas.
And Durham too has to face the discipline of the system. That means he can’t simply assert that hiring investigators to do normal opposition research in a political campaign and funneling material generated by a technology executive to the press is some kind of conspiracy. It means that he can’t just assert that reporting such findings to law enforcement is an attempt to weaponize the FBI. He actually does need to allege an actual crime to tell such a story.
It also means that when he decides to tell such a story—and to impute a great deal of wrongdoing to a whole range of people—hanging his hat on an alleged lie as the crime that gets him through the door to tell his story, he has to be prepared to prove that lie to be a real one, one that something actually turned on.
It also means that the person who allegedly told that lie gets to defend himself—albeit at a financial cost that most people could not afford.
And finally, it means that a jury gets to make a decision.
This, it seems to me, is the larger significance of the Sussmann case. Durham sought to use a false statement case to tell a much larger story. He clearly believes there was a deep web of impropriety in the relationship between the Clinton campaign, its lawyers, Fusion GPS, and the FBI. But he has been unable to make that case. So he tried to cram as much of it as he could into the case against Sussmann, which he sought to use to unseat the standard model of the Trump-Russia scandal.
Wherever Durham goes from here, this was far more weight than a weak false statement case would bear.