N.E. Brigand wrote: ↑Wed May 18, 2022 7:41 am
As a reminder: Michael Sussmann was charged by the office of special prosecutor John Durham with allegedly falsely telling the FBI's general counsel James Baker on on September 19, 2016 that he wasn't representing a client when he brought Baker evidence of hundreds of unexplained DNS lookups between a server in the Trump Organization and a server at Russia's Alfa Bank. Sussmann's clients at the time included tech executive Rodney Joffe (recipient of the FBI's
Director's Award for Outstanding Cyber Investigation), the Clinton campaign, and the Democratic National Committed (DNC). It's not clear what exactly Sussmann told Baker about representing clients on that date. Baker has been inconsistent in explaining this, there is no recording of the meeting, there are no notes from the meeting, no one else was in the meeting, and notes from a conversation Baker had the same day with another FBI official describe Sussmann both as a lawyer who represents the Democrats and as not representing anyone during this meeting.
I wonder if Michael Sussmann is going to testify on his own behalf. Before today, his attorneys elicited testimony in cross-examination of several witness for the prosecution that appears to show (1) that the Clinton campaign didn't know Sussmann was going to the FBI, (2) that the Clinton campaign wouldn't have wanted him to go to the FBI because it could result in possible news stories about Alfa Bank being delayed and watered down (which is in fact what happened), (3) that he didn't bill the Clinton campaign for the meeting (all as noted in the article Voronwë cites); (4) that he had no reason to doubt the DNS information, which came from top cyber researchers; and (5) that whether or not Sussmann was representing a client didn't affect the course of the FBI's investigations. (This last point is the least helpful for Sussmann, because the standard for materiality is very low.) Even so, the verdict is probably all going to come down to the testimony of the former FBI general counsel, James Baker, who took the stand today and will continue tomorrow.
Both the prosecutor and Sussmann's attorney have elicited testimony from Baker indicating (1) that Baker has changed his story about what Sussmann told him (Baker has said under oath multiple times and as late as February 2020 that Sussmann told him he was representing a client at the 2016 meeting), (2) that Baker now remembers very clearly that Sussmann told him in the meeting he wasn't representing a client but Baker still can't remember other pertinent facts about the meeting and its outcome (e.g., he can't remember to whom he turned over the white papers and thumb drives that Sussmann gave him or whether Sussmann gave him two or three thumb drives), (3) that Baker remembers some aspects of the meeting differently than what FBI Assistant Director Bill Priestap wrote in notes he took on a meeting with Baker immediately after Baker met Sussmann (e.g., Priestap wrote in his notes that Sussmann represented the Clinton Foundation, but Baker says he told Priestap that Sussmann represented the Clinton campaign); (4) that Baker himself was under investigation by Durham's team (which may imply that Baker settled on Durham's preferred version of the story in order to avoid prosecution), and (5) that Baker was in an internal FBI meeting six months later in which it was clearly stated that Sussmann was there on behalf of a client (Baker says he doesn't remember that meeting). Regardless of all the discrepancies, the jury still has testimony from this former high-ranking FBI official saying now that while he knew in 2016 that Sussmann represented both the DNC and the Clinton campaign, in the meeting on September 19, Sussmann had told him, as per his text to Baker on September 18, that he wasn't there "on behalf" of any client.
Of course, Sussmann and his lawyers know best, and there are certainly risks to a defendant who testifies, but perhaps the best way to respond to Baker would be for Sussmann to testify, as he once did to Congress (in Dec. 2017), about why he went in and what he said. It's all well and good for the judge to instruct the jury that they shouldn't make any inferences about Sussmann not testifying, but I think lingering in the back of their minds would be the thought that not doing so means he can't rebut Baker's (latest) version of what happened in the meeting.
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Reading some of the House Intelligence Committee
transcript, it's actually pretty interesting how Sussmann came to tell the House Intelligence Committee he had brought the information to the FBI. Answering questions by a Republican committee staff member, he explained that, in December 2016, in response to President Obama having ordered, shortly before he left office, a review of intelligence regarding Russian interference in the 2016 election, Sussmann, with the permission of a then-unnamed client (Rodney Joffe), reached out to the general counsel for the CIA to say he had possibly relevant information and he ended up meeting with CIA representatives in February 2017. The Committee staffer asked Sussmann when he had obtained that information, and he said summer 2016. Which prompted this exchange:
Q "OK. So why didn't you then -- if you felt that it was necessary to convey the information you had been aware of to appropriate sources, if you will, appropriate entities, in this case you thought [redacted: the CIA] was appropriate, why didn't you convey this information earlier to the FBI, or had you?"
A "I had."
Here's the part of the transcript where Sussmann explained why he went to Baker:
Q-- And what did Mr. Baker advise you to do?
A-- Advise me to do?
Q-- Yeah. Or what was -- what did he -- how did he respond to the information that you conveyed to him?
A-- He said thank you.
Q-- Did he offer any follow on --
A-- No.
Q-- -- engagements, or did he promise that he would pass it on?
A-- But to be clear, I told him I didn't want any. I mean, I was sharing information, and I remember telling him at the outset that I was meeting with him specifically, because any information involving a political candidate, but particularly information of this sort involving potential relationship or activity with a foreign government was highly volatile and controversial.
And I thought and remember telling him that it would be a not-so-nice thing -- I probably used a word more strong than "not so nice" -- to dump some information like this on a case agent and create some sort of problem.
And so i was coming to him mostly because I wanted him to be able to decide whether or not to act or not to act, or to share or not to share, with information I was bringing him to insulate or protect the Bureau or -- I don't know. I just thought he would know best what to do or not to do, including nothing at the time.
And if I would just go on, I know from my time as a prosecutor at the Department of Justice, there are guidelines about when you act on things and when close to an election you wait sort of until after the election.
And I didn't know what the appropriate thing was, but I didn't want to put the Bureau or him in an uncomfortable situation by, as I said, going to a case agent or sort of dumping it in the wrong place. So I met with him briefly and -- [ ... ]
And if I could just continue to answer your question, and so I told him this information, but didn't want any follow-up, didn't -- in other words, I wasn't looking for the FBI to do anything. I had no ask. I had no requests. And I remember saying, I'm not -- you don't need to follow-up with me. I just feel like I have left this in the right hands, and he said, yes. [ ... ]
I knew in his role, he seemed like the right person to go to with potentially sensitive information, and that he would -- I had hoped or assumed he would know what to do or what was in the best interest of the Bureau and of our country [...].
And here's the part where Sussmann explained what he said about his client:
Q-- When you decided to engage the two principals, one Mr. Baker in September, and the general counsel of [redacted: the CIA] in December, you were doing that on your own volition, based on information another client [i.e., another client than Democratic National Commitee and the Clinton campaign, both of which had given Sussmann permission to confirm to the Committee that he represented them] provided you. Is that correct?
A-- No.
Q-- So what was -- so did your client direct you to have those conversations?
A-- Yes.
Q-- OK. And your client also was writing of you going to [redacted: the CIA] in February to disclose the information that individual had provided you?
A-- Yes.
Q-- Back to the FBI. [ ... ] I want to ask you, so you mentioned that your client directed you to have these engagements with the FBI and [redacted: the CIA] and to disseminate the information that client provided you, is that correct?
A-- Well, I want to apologize for the double negative. It isn't not correct, but when you say my client directed me, we had a conversation, as lawyers do with their clients, about client needs and objectives and the best course to be taken for a client.
And so it may have been a decision that we came to together. I mean, I don't want to imply that I was sort of directed to do something against my better judgment, or that we were in any sort of conflict, but this was -- I think it's most accurate to say it was done on behalf of my client.
There's also some fun as the Republican staffer makes five different wrong guesses as to who gave Sussmann the Alfa Bank information. Sussmann was able to testify that those five people were
not his clients, but he didn't have permission at the time to identify Joffe as his client.
I'm also amused that the official Congressional transcript has "docs'ing" for the word "doxing."
Finally, thinking more about Voronwë's prediction that Sussmann would plead out -- an entirely reasonable prediction, given that Kevin Clinesmith had done so -- I suspect Durham himself thought that would happen. That would explain why he hadn't even obtained some very basic evidence until as long as six months after he charged Sussmann last Septmeber.
