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John Durham’s case against Michael Sussmann just got tougher


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In a predictable but nonetheless damaging blow to the prosecution, trial judge Michael Sussmann ruled Thursday that the government could not assert that Sussmann’s text message to the then-FBI general counsel constituted the misrepresentation that was blamed on him. Instead, prosecutors must rely on their evidence that Sussmann made the false statement the next day, when he met with Attorney General James Baker at the latter’s FBI office.

Sussmann, a senior Democratic Party lawyer, allegedly lied to Baker that he was not representing any clients when, on September 19, 2016, he brought Baker what he claimed was evidence showing that Donald Trump, then a presidential candidate the GOP presidency, had established a communication channel with the Kremlin, via servers of the Russian bank Alfa.

MICHAEL SUSSMANN WILL NOT TESTIFY AT TRIAL, DEFENSE RESTS AHEAD OF FINAL ARGUMENTS

In reality, Durham represented the Clinton campaign, as well as a technical executive, Rodney Joffe, who compiled the data that Sussmann provided to Baker.

Both sides have now rested in the trial, which began two weeks ago. Summonses are imminent.

The smoking gun establishing that Sussmann made a false statement appears to be the text message Sussmann sent Baker the night before they met. Sussmann reached out to Baker because the two are friends, both having worked for many years in government as Justice Department national security attorneys. Sussmann’s September 18 text stated:

“Jim – this is Michael Sussmann. I have something urgent (and sensitive) that I need to discuss. Do you have availability for a short meeting tomorrow? I come on my own — not on behalf of a client or company — I want to help the Office. Thank you.” [Emphasis added.]

But the problem for Russiagate special advocate John Durham is twofold.

First, his prosecutors did not have the text, or even knowledge of it, when they indicted Sussmann in September 2021. Therefore, the text is not pleaded as a false statement in the charging document. The indictment, instead, accuses Sussmann of making the false statement during an in-person meeting with Baker on September 19.

This makes the case much more difficult for prosecutors. The 20-minute encounter between Baker and Sussmann was not a standard FBI interview. It was more like a short one-on-one meeting between two old friends. The session was not recorded and there was no second FBI official on hand to take notes and clarify any ambiguities.

Baker was an FBI attorney, not a trained investigator. In a standard federal criminal investigation, witnesses are interviewed by two FBI agents, one conducting the interrogation and the other taking notes. Officers then write a summary report (Form 302), based on their collective memory. If there is a dispute about what the witness said, then there are two trained officers available to testify.

In a case of misrepresentation, the prosecution must prove the statement allegedly made beyond a reasonable doubt. On this point, Baker indeed testified to Sussmann’s insistence that he was not bringing anti-Trump information to the FBI on behalf of a client. Nonetheless, the defense did show that Baker has made inconsistent statements over the years when questioned about his meeting with Sussmann, both in congressional hearings and internal Justice Department investigations.

That is, prosecutors must now rely primarily not on the text but on Baker’s recollections, and his recollections have been sketchy.

from Durham second The big problem is the five-year statute of limitations. He was close to the deadline to file charges when he charged Sussmann in September 2021. Six months later, when interviewing Baker ahead of his upcoming testimony, Durham asked Baker – who no longer works for the government – to check his personal records for any information that might be relevant to the case. At that time, Baker checked his stored text messages and found several from Sussmann, including the steamy text from September 18, 2016.

Normally, a prosecutor who had received such ironclad evidence of a misrepresentation would simply return to the grand jury and obtain a superseding indictment, charging the text as a separate count of misrepresentation.

In this case, however, the five-year limitation period had already expired. Durham was unable to add any new charges related to the events of September 2016. In fact, even replacing the indictment to describe the text, rather than charging it separately, would have raised legal objections according to which prosecutors were amending the indictment after the statute of limitations had run.

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Michael Sussmann, a cybersecurity lawyer who represented Hillary Clinton’s presidential campaign in 2016, leaves the federal courthouse in Washington, Monday, May 16, 2022. A jury was chosen Monday in the trial of a Hillary Clinton presidential campaign lawyer accused of lying to the FBI while investigating potential ties between Donald Trump and Russia in 2016. (AP Photo/Manuel Balce Ceneta)

Durham was therefore stuck with the indictment as it was written, before the existence of the text became known.

Importantly, this does not mean that the text is completely out of case. On the contrary, prosecutors will still be allowed by Judge Christopher Cooper to argue that the text is strong evidence that Baker is correct that, at the September 19 meeting, Cooper insisted that he did not represent not a customer. Prosecutors will point to the text just before the meeting, as well as Baker telling other FBI officials right after the meeting that Sussmann said he was not representing a client. Based on this, the Durham team will argue that the evidence for Sussmann’s misrepresentation is compelling.

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Nonetheless, prosecutors will not be allowed to assert that Sussmann is guilty of making a false statement based solely on the text. To convict him, the jury must be satisfied that Sussmann made the false statement during the meeting with Baker.

This makes it a much tougher case for Special Counsel John Durham.

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