On Sept. 22, Michael Sussmann appeared via video at the first status conference held in Special Counsel John Durham’s criminal case against the former Clinton attorney. During the hearing, the government noted some disclosure material likely included classified information, spinning speculation of what those documents might be.
But while the prosecution remains in its infant stages, and it will be some time before the country knows more details related to Sussmann’s role in Spygate, the biggest backers of the Trump-Russia collusion hoax have already exonerated Sussmann. That fits a long pattern of collusion spinners downplaying every investigative advance into their Russia hoax.
Here are their top talking points about the Sussmann news and why they are gibberish.
1. That’s All You Got, Mr. Durham?
Last week, when news broke that Durham had filed a one-count indictment against Sussmann, alleging the Clinton lawyer had lied to FBI Director James Baker about Sussmann’s representation of the Clinton campaign in passing on supposed Alfa Bank “intel,” the immediate knee-jerk refrain counter was, “That’s it?”
That’s how the Washington Post originally headed its editorial board diatribe that downplayed Sussmann’s conduct before taking some swats at former Attorney General Bill Barr. After spitting out some additional irrelevant talking points (see below), the editorial board called for Durham to “bring an end to this long-running exercise” if he has nothing more compelling to charge.
A day earlier, the Post had run a similar column by Randall Eliason, entitled, “After two years, this is the best Trump’s chosen investigator can do?” Eliason likewise called for Durham to “just fold up his tent and go home” “if prosecutions such as this are all he’s got.”
Over at CNN.com, Chris Cillizza penned a similar take under the title “Is this all John Durham has?” After graciously acknowledging, “You shouldn’t lie to the FBI’s lead lawyer,” Cillizza pivoted to the “broader question: Is that the best that Durham’s got?”
The Hill ran a similarly themed op-ed, entitled, “Barr-Durham Investigation Again Fails to Produce a Main Event.” “On September 17, John Durham, former Attorney General William Barr’s designated special counsel, unveiled a molehill he had made out of the mountain Barr hired him to build,” Dennis Aftergut’s op-ed opened.
Aftergut continued with various swipes at Trump, Barr, and Durham—with themes repeated by other left-leaning pundits—before concluding, “We do not know what Durham’s investigation may eventually yield. To date, however, the rose garden that Barr promised Trump and company seems to have sprouted only a couple of thorns.”
2. Pay No Attention to the Facts In the Indictment
While the “That’s it” crew hedged their coverage with passing caveats acknowledging Durham may yet come forward with more charges, they seemed genuinely convinced that would not happen. Given the details included in the indictment, that’s truly a bizarre stance to strike.
The 27-page indictment detailed plenty of disturbing facts meriting mention, but Sussmann’s apologists ignored them, including this tidbit: “Researcher-1 and Researcher-2 both worked to locate any connection between Trump and Alfa Bank and in doing so, accessed ‘data of an Executive Branch office of the U.S. government,’ which ‘Internet Company-I had come to possess as a sub-contractor in a sensitive relationship between the U.S. government and another company.’”
That Internet Company-I shared data obtained as “a sub-contractor in a sensitive relationship between the U.S. government and another company” with Researcher-1 and Researcher-2 screams criminal conduct.
The Hill op-ed made no mention of this detail, however, nor did The Washington Post editorial board or CNN’s Cillizza. Over at Lawfare, Benjamin Wittes reacted to these allegations by calling the story “a sleazy one,” but “pretty typical of opposition research efforts in high-stakes campaigns.” (If so, our federal government had better do some better vetting of contractors.)
Eliason’s Post piece likewise cast the indictment as reading “like a political document, not a legal one.” He then framed the above allegation as falling in the category of “Internet researchers’” efforts “to run down the suspected ties between Trump and the Russian bank,” while stressing that “none of that activity is alleged to have been illegal.”
True. Not yet.
3. Sussmann Has Nothing to Do With SpyGate
A third line of defense pushed by Durham’s critics suggests the special counsel’s indictment of Sussmann has nothing to do with his charge to determine whether the FBI launched its Crossfire Hurricane investigation legitimately.
The Hill’s Op-Ed called the Sussmann indictment “collateral” to Durham’s mission of “‘investigating the investigators’ who launched the FBI’s 2016 Trump-Russia probe.” Aftergut, a regular Trump-Barr critic, likewise framed Durham’s “only other product” from his probe—the conviction of former FBI lawyer Kevin Clinesmith—as unrelated to Durham’s charge since Clinesmith’s crime occurred 11 months after the FBI began Crossfire Hurricane.
Wittes likewise pushed this spin in his veritable treatise at Lawfare on what he branded “the Special Counsel’s Weird Prosecution of Michael Sussmann.” Durham “has indicted a cybersecurity lawyer named Michael Sussmann for allegedly making a single false statement in a conversation in 2016 with then-FBI General Counsel Jim Baker,” Wittes wrote. “The allegedly false statement concerned not Trump or Russia,” the Lawfare founder continued, before stressing that misconduct portrayed by Sussmann “is, at best, wholly peripheral to the substance of the allegations Durham was supposedly peddling.”
In an op-ed for MSNBC, long-time Trump critic Barbara McQuade repeated this line, claiming “Special Counsel John Durham was tasked with investigating the origins of the FBI’s Russia investigation.” She doubles down on this angle later in her piece, writing Durham’s “assignment was to investigate the origins of the Russia investigation” and any statement made by Sussmann months after the launch of Crossfire Hurricane “could not possibly have sparked the Russia investigation.”
However, contrary to this collective spin, Sussmann’s alleged conduct fell squarely within the reported scope of Durham’s special counsel investigation, “to investigate whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counter-intelligence, or law-enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, III.”
4. Good Luck Proving Your Case
There was also a collective effort to frame the special counsel’s case against Sussmann as weak and difficult to prove, and therefore an inappropriate exercise in prosecutorial discretion. In other words, the charge against Sussmann was truly an indictment against Durham.
“Before putting a person through the expense, burden and stigma of criminal charges, a prosecutor should make a determination ‘that the admissible evidence will probably be sufficient to obtain and sustain a conviction,’” Former U.S. Attorney McQuade intoned for MSNBC, before declaring, “This case comes woefully short of that standard.”
McQuade then claimed Durham would have a hard time even proving Sussmann lied to Baker, noting it was basically a “he-said, he-said” faceoff, with Baker not making the most ideal of witnesses, having disclaimed during congressional testimony recalling exactly what Sussmann told him.
Over at Lawfare, Wittes repeated this refrain, writing the case “hinges on the testimony of a single witness: the former FBI general counsel, Jim Baker.” “This concession,” as Wittes’ frames it, “appears on page 18 of the indictment, which describes the Sept. 19, 2016, meeting between Sussmann and Baker at FBI Headquarters where the supposed lie happened,” and “notably includes the fact that ‘[n]o one else attended the meeting.’”
McQuade and Wittes, both lawyers, also push a second point: that even if Sussmann lied, the lie was not material. “The materiality element,” McQuade notes “requires a showing that the statement could influence a matter under consideration; not every false statement is a crime, only those that matter.” She then proceeds to say why Sussmann’s lie really didn’t matter.
Wittes presents a more lawyerly analysis, but while admitting “the standard for materiality in the D.C. Circuit is a forgiving one for prosecutors,” the Lawfare founder maintains Durham’s team will have trouble meeting that standard.
Whether a jury will find Sussmann lied and that those lies were material is, of course, unknown, but it’s a strange sight to see the duo shrug off the charges on the basis that a jury might not convict.
5. But Michael Flynn
A fifth prevalent rejoinder played over the last week involved invoking the name of Michael Flynn. “Even if true,” the Washington Post’s editorial board wrote, “the Sussmann episode is far less alarming than the case of former national security adviser Michael Flynn, whom Mr. Barr moved to protect from punishment and Mr. Trump later pardoned.” Sussmann’s alleged lie was minimal by comparison to Flynn, whom the editorial board framed as lying “about his conversations with the Russian ambassador” about “an issue of central importance to the investigation of the Trump campaign’s connections to Russia.”
At MSNBC, McQuade similarly complained that “claiming materiality here is particularly galling in light of DOJ’s treatment of former national security advisor Michael Flynn.” Special Counsel Robert Mueller had charged Flynn with making false statements to the FBI, McQuade explained, but Attorney General Barr later filed a motion to dismiss the charge “on the grounds that Flynn’s statement was not material.” “While materiality generally has a fairly low bar,” McQuade wrote, “the different standard that Durham — who Barr appointed — is holding Sussmann now suggests that he is being treated unfairly.”
McQuade ignores, however, that the reason Barr concluded Flynn’s statements to the FBI were not “material” was not because they were trivial, but because they were not linked to any viable investigation. In other words, Comey and his crew had set a perjury trap, and as the U.S. Attorney’s office explained in its Motion to Dismiss the case, the materiality requirement “prevents law enforcement from fishing for falsehoods merely to manufacture jurisdiction over any statement. . . .”
Conversely, Sussmann set himself up in this case, and for no better person than a Clinton.
While it is perfectly predictable that the left would try to equate the Flynn case with the charge filed last week against Sussmann, one would think their foray into that prosecution and the subsequent dismissal of the charge against Trump’s former national security advisor would remind folks that Durham has had a whistleblower at the ready for the last year.
That revelation came after presiding Judge Emmett Sullivan refused to grant the government’s motion to dismiss the case against Flynn, leading federal prosecutors to file the 13-page interview summary U.S. Attorney Jeff Jensen had prepared after interviewing FBI Special Agent William Barnett.
During his interview with Jensen, Barnett told of a “get Trump” mentality that permeated the Crossfire Hurricane probe and later the special counsel’s office. Barnett’s statement confirmed the lack of a valid purpose to interview Flynn and thus supporting the dismissal decision.
But Barnett’s role extended much beyond Flynn, with the FBI agent involved from the early days of Crossfire Hurricane through Mueller’s investigation. And the ten-plus pages of notes Jensen typed up, spoke not just of concerns about the handling of the Flynn case, but broader concerns about the entire investigation and much of the Special Counsel probe.
So, before the Durham detractors break out their next narrative, they might want to pause to peruse what Barnett had to say and remember that summary came from the interview U.S. attorney Jensen conducted solely for the purpose of assessing the propriety of the Flynn prosecution.
Durham’s charge is much broader—and so will the criminal charges be before he’s done, if the details in the Sussmann indictment and Barnett’s interview are any suggestion.
