Special Counsel John Durham appears to have methodically built a case of historic consequence. It’s just not the case he has brought against bigshot Democratic Party lawyer Michael Sussmann.
Jury selection begins in Sussmann’s trial on Monday, in Washington, DC. It will be the first trial to arise out of the Russiagate probe, which began over three years ago. That’s when former Trump Attorney General Bill Barr assigned Durham, a longtime Justice Department prosecutor from Connecticut, to investigate how, in the middle of a heated presidential campaign and based upon scant evidence, the FBI came to suspect one of the candidates of being a clandestine agent of the Kremlin — to the point of opening counterintelligence and criminal investigations targeting Donald Trump’s 2016 campaign.
According to court filings in the Sussmann case, Durham has fingered the Hillary Clinton campaign as the culprit. The problem is that Durham has not charged that fraudulent scheme. Yet, he wants to offer evidence of the sweeping scheme in order to prove a comparatively minor and narrow offense — namely, that Sussmann lied to the FBI at a single meeting, on September 19, 2016.
Durham theorizes that the Clinton campaign concocted a political smear that Trump was a Putin puppet, then peddled the tale to a compliant media and to the FBI. This would enable Clinton to tout the “evidence” of corrupt Trump-Russia ties as so serious that the Feds were investigating.
Durham contends that the Clinton campaign left most of the scandal-mongering to its lawyers. Thus did Sussmann become central to the scheme, as did his law partner, Marc Elias. (Both attorneys have since left their white shoe international law firm, Perkins-Coie.) The deployment of lawyers in their schemes and scandals is a time-tested Clinton modus operandi, enabling them to claim attorney-client privilege to cover their tracks when controversy erupts and investigators start snooping around — a frequent occurrence over the last 30 years.
Here, as we’ll see, there is delicious irony in the attorney-client gambit. The Clinton campaign is now claiming privilege in a desperate effort to block Durham from examining its communications with Sussmann and others. Yet Sussmann is on trial for allegedly telling the FBI, falsely, that he was not representing the Clinton campaign when he urged the Bureau to investigate Trump — insisting that the Republican nominee had established a secret back channel for communications with Vladimir Putin, through servers at Alfa Bank, an important Russian financial institution.
In short, Durham portrays the Clinton campaign as guilty of perhaps the worst dirty trick in the history of American presidential elections: a conspiracy to defraud the government into probing her opponent, the better to slander Trump, in the electorate’s eye, as a nefarious threat to the United States.
But, again, Durham has not charged anyone — not Hillary Clinton, her campaign, or any of its operatives — for such a sensational crime. This sets up the central dynamic of the trial: How much of evidence of the big, uncharged fraud scheme will the judge, Obama-appointee Christopher Cooper, permit Durham to introduce as proof of why he allegedly lied to the FBI?
Durham describes the fraud scheme as the “joint venture” involving the Clinton campaign, its lawyers, a group of Internet researchers, and the so-called “information” firm Fusion GPS.
Prosecutors say the Clinton campaign acted through Elias, the notoriously plugged-in Democrat who served as top counsel for the campaign and the DNC, and Sussmann, a former top Justice Department cyber-security lawyer, who represented the DNC when its servers were allegedly hacked by Russia.
Sussmann had an important tech client, Neustar, and thus represented one of its top executives, Rodney Joffe. A Clinton supporter who expected to land a top government cybersecurity gig if Hillary were elected, Joffe networked with a group of Internet researchers at other tech companies and Georgia Tech University. Because of various contractual arrangements, including with the government, the researchers had privileged access to Internet data, including “Domain Name System” (DNS) records that essentially show when servers and email addresses contact each other.
In spring, 2016, one of the researchers, April Lorenzen, alerted Joffe that she interpreted DNS data to indicate that Trump could be communicating with Putin’s regime — essentially, servers at Alfa Bank were being pinged from a domain the Internet researchers associated with the Trump organization.
The prospect excited Joffe, who tasked the array of researchers to use their access, not for its intended business and security purposes, but to do partisan “oppo” (opposition research), targeting communications patterns of Donald Trump and his associates. Joffe shared what he was doing with Sussmann and Elias, who are said to have encouraged and consulted with him.
Of course, there was a lot more to the Trump-Russia “collusion” farce. Sussmann’s trial is where Durham would like to connect the dots.
Elias had retained Fusion GPS (the Clintons’ go-to “oppo” guys) to search for dirt tying Trump to Russia. Fusion co-founder Glenn Simpson thus recruited former British spy Christopher Steele, and together they crafted the “Steele dossier” — an embarrassingly slipshod compilation of rumor, innuendo, and flat-out fiction that Steele whipped into a set of faux private “intelligence reports.”
Steele’s main source for the disinformation was his associate Igor Danchenko — a former Brookings Institute scholar whom the FBI had previously investigated on suspicion that he was, yes, a Russian spy.
Interestingly, Danchenko is the defendant in the other false-statements case Durham expects to try later this year. He is accused of lying to the FBI about his sources of information for the dossier.
Durham wants to use the dossier angle to show the sinister nature of the Clinton campaign scheme.
Late in the campaign, Sussmann met with Simpson and Steele. This put Steele onto the Alfa Bank tale. He wrote it up as if it were explosive intelligence. It was incorporated into the dossier. Without verifying Steele’s claims, which Danchenko would later concede were nonsense, the FBI swore to them in foreign intelligence surveillance applications, claiming the Trump campaign was in cahoots with Putin.
Consequently, the secret federal FISA court issued spy warrants. For nearly a year, well into Trump’s first year in office, the Bureau monitored Carter Page, a former Trump campaign adviser.
Durham’s says he will prove that the researchers realized that the Alfa Bank theory was a dry hole. Yet Joffe encouraged them, indicating that the back channel story didn’t need to be proven as long as it appeared to be plausible enough to suggest a possible Trump-Russia connection. With the lawyers coordinating, Fusion took the lead in peddling the Alfa Bank claims to the media. To draw the FBI in, Sussmann would be dispatched.
Now, let’s say you wanted to report a crime to the FBI. You, mere mortal, would have to speak to the agent on duty. But that’s not how it works in Washington — not if you’re a hotshot, politically-connected, former government official like Sussmann.
Naturally, he had the cellphone number for his former Justice Department colleague, Jim Baker, who was now the Bureau’s general counsel — its top lawyer, and a key adviser to FBI Director Jim Comey and Deputy Director Andy McCabe. On Sunday night, September 18, Sussmann texted Baker, stating:
Jim — 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. [Emphasis added.]
That is the alleged lie, which Sussmann is said to have repeated when the obliging Baker gave him a meeting at FBI headquarters the very next day. There, Sussmann presented him with data packages curated by Joffe, imploring the FBI to investigate the supposedly suspicious Trump-Russia connection.
Sussmann realized, Durham contends, that if he had told Baker he was working for the Clinton campaign and Joffe, the Bureau would instantly have understood the partisan political nature of the gambit. Maybe he wouldn’t have gotten in Baker’s door, and certainly the FBI would have evaluated the data very differently.
In essence, Sussmann traded on his credentials as a former national-security lawyer, just patriotically trying to protect America. Convinced of Sussmann’s good faith, the FBI opened an investigation of Trump’s supposed Alfa Bank pipeline to Putin.
With that accomplished, the campaign spun into high gear. About a week before the 2016 election, Hillary Clinton and Jake Sullivan (a top campaign aide and now President Biden’s national security advisor) posted a series of tweets, decrying Trump’s supposedly corrupt ties to Putin, particularly their secret back channel, and crowing that it was now incumbent on the government to investigate.
As it happens, the FBI did investigate. Agents learned that the domain Sussmann and the researchers had associated with Trump was not owned or operated by him or his real estate organization; it was run by a mass-marketer who had obvious reasons to be contacting international business travelers. In short order, the Bureau concluded there was no basis for further investigation.
Durham reports that the CIA went further when Sussmann tried to interest them in an updated data package in February 2017. The Agency rejected the information as not “technically plausible,” unable to “withstand technical scrutiny,” rife with “gaps,” internally contradictory, and was “user created and not machine/tool generated.”
The problem for Durham is that, because he hasn’t charged the big scheme, Judge Cooper is restricting what he can tell the jury about it. The CIA’s analysis is out of the case, as is proof that the data was grossly inaccurate — unless Sussmann makes the mistake of suggesting otherwise. The Clinton and Sullivan tweets are out — they happened weeks after Sussmann’s FBI meeting. And while Cooper has just compelled Fusion GPS to hand over some of its internal emails to prosecutors, the judge curiously ruled that Durham waited too long to seek them — they, too, are out of the case.
On the other hand, to the extent Sussmann directly participated in the scheme, the court is inclined to let Durham prove it — the consultations with Joffe, Elias, and Fusion. Durham will use law firm records to show Sussmann billed his time to the Clinton campaign, including when he visited the FBI and claimed he wasn’t there on a client’s behalf.
Durham will have enough evidence to prove the narrow crime he’s charged. The biggest challenge may be the jury in Trump-hostile Washington. Durham may be the government’s lawyer, but this will not be a home game for him.
Andrew C. McCarthy is a former federal prosecutor.