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What We Learned From Michael Sussmann’s Response To The Spygate Special Counsel

The media has finally begun covering the special counsel’s investigation and indictment against former Clinton campaign lawyer Michael Sussmann, and he is none too happy.

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Late yesterday, Michael Sussmann filed a response to John Durham’s Friday court filing that set off a media buzz over the criminal case against the former Hillary Clinton campaign attorney.

In the six-page memo filed in the D.C. federal court, Sussmann’s Latham and Watkins attorneys informed the court they had previously advised the special counsel that Sussman understood his right to consult with independent counsel and intended to waive any potential conflicts of interest. Sussmann’s filing added that he does not oppose Durham’s request that he waive those issues on the record.

Sussmann then spent the next five pages complaining about the special counsel’s filing. He claimed it “unnecessarily includes prejudicial—and false—allegations that are irrelevant to his Motion and to the charged offense.” Those extra details, Sussmann argued, were “plainly intended to politicize this case, inflame media cover, and taint the jury pool.”

In other words, the media has finally begun covering the special counsel’s investigation and the indictment against Sussmann, and he is none too happy.

Sussmann proceeded next to claim that the special counsel’s motion succeeded in “instigat[ing] unfair and prejudicial media coverage of Mr. Sussmann’s case.” Without detailing how the coverage was “unfair,” the motion cited online articles at Fox News, The New York Post, the Washington Examiner, Breitbart, and The Daily Mail. Omitted was The Federalist’s detailed coverage, clearly a grudging admission of this outlet’s detailed and accurate analysis.

“Worse still,” in Sussmann’s estimation, was the fact that “Mr. Trump seized upon the Special Counsel’s filing” to call the scandal “far greater in scope and magnitude than Watergate.” Rep. Jim Jordan soon “endorsed Mr. Trump’s position,” Sussmann also complained.

Yesterday’s motion then revisited the special counsel’s decision to file a 27-page indictment for a single-count, false statement case, as well as Durham’s filing of a “Discovery Update.” In the “Discovery Update,” Sussmann charged Durham “went out of his way to include uncharged and inflammatory allegations,” including what Sussmann called “the gratuitous claim that his Office had an ‘active, ongoing criminal investigation of the defendant’s conduct and other matters.”

Given that Durham had alerted Sussmann in the Discovery Update that his conduct remains under investigation by the special counsel’s office, it was rather foolhardy for the former Clinton attorney to complain that the indictment “reads as though there was a vast conspiracy, involving the Clinton Campaign and Mr. Sussman” while not charging a conspiracy. Be careful, or you might just get what you ask for, as they say.

After highlighting these complaints, Sussmann asked the court to “strike” the special counsel’s “Factual Background” portion of its motion, which, if granted, merely means the court would treat it as if those sections of the motion were not filed with the court. Sussmann, however, is likely hoping his Motion to Strike prompts the judge to caution the special counsel’s office to limit any extraneous details in future filings. The court may well do that.

Sussmann may soon regret his strategy in filing this motion, for several reasons. First, it provides Durham an opportunity to respond both to Sussmann’s complaints that the details are extraneous and to respond to the counterpoints Sussmann included in his motion.

Second, Sussmann’s filing will prompt even more coverage of Durham’s various filings, whereas if he had said nothing the complicit media would have likely dropped coverage of the case after a day or two. Third, Durham’s filings provided Sussmann a heads up on the special counsel’s strategy—likely intentionally so, with the hope that Sussmann may decide to cooperate. But even if Sussmann opts to continue fighting the charges, he is better off knowing what Durham has in store for him.

That Sussmann opted to file the motion to strike, even with the above negatives cautioning against such an approach, suggests the coverage—even when coming from mainly conservative-leaning outlets—is starting to break through the media blackout and is preventing him from controlling the narrative.

So, in his filing, in addition to seeking to strike the special counsel’s “Factual Background,” Sussmann attempts to refute it. For instance, Sussmann claims that while the special counsel’s office implied he had provided the CIA data related to Domain Name System lookups in the Executive Office of the President from after Donald Trump took office, Sussmann maintains that the data only pertained to the period when Barack Obama was president.

That’s a strange argument, though, given that the data was intended to show connections between Trump and his affiliates and the supposedly rare Russian cell phones. Likely, then, the data concerned the transition period, which is consistent with the concerns the special counsel’s office detailed in its motion.

The more significant revelations from the filing, however, concerned the charged offense, namely that Sussmann lied to the FBI’s James Baker when he told Baker on September 19, 2016, that he was not representing any client in bringing to the government’s attention the data and analysis supposedly showing Trump had a secret communication channel with the Russian Alfa Bank.

“The Special Counsel persists in alleging Mr. Sussmann billed the Clinton Campaign for his meeting with the FBI in September 2016, when that is false,” Sussmann’s motion maintained. Sussmann further claimed in his motion that a full-time employee of the Clinton campaign told the special counsel that when Sussmann met with Baker on September 19, 2016, he was not acting on behalf of the campaign.

That latter detail proves fascinating for two reasons. First, a careful reading of the lawyerly wordsmithing suggests a different Clinton campaign representative indicated that Sussmann had in fact met with Baker on behalf of the campaign.

“It was not until November 2021—two months after Mr. Sussmann was indicted—that the Special Counsel bothered to interview any individual who worked full-time for the Campaign to determine” if Sussmann had met with the FBI on behalf of the Clinton campaign, the motion read.

But why specify “full-time” in this assertion? The most likely answer is that someone else connect to the Clinton campaign confirmed the special counsel’s charge—that Sussmann met with Baker on behalf of the Clinton campaign.

On the other hand, if the campaign completely denies Sussmann was acting on its behalf in meeting with Baker, that will make for a much more interesting trial, with the Clinton campaign representatives subject to cross-examination by Durham’s team concerning exactly what authority Sussmann had and when he needed approval from above; and exactly what Sussmann was authorized by the campaign to do.

Now that Sussmann has made it an issue, we may get some clarity from Durham’s office on what the Clinton campaign is claiming concerning the September 19, 2016, meeting when it responds to Monday’s filing. So stay tuned.