For the special counsel, the prosecution of Democratic lawyer Michael Sussmann in a Washington, D.C., courtroom will not be a home game.
For the special counsel, the prosecution of Democratic lawyer Michael Sussmann in a Washington, D.C., courtroom will not be a home game.
R oy Cohn, the notorious rogue lawyer and Donald Trump confidant, famously said, “Don’t tell me what the law is, tell me who the judge is.” And the judge in Special Counsel John Durham’s prosecution of Michael Sussmann will have to decide a point of false-statements law: materiality.
Sussmann, of course, is the former Perkins Coie lawyer who represented the Democratic National Committee (DNC), among other notable political clients. The case against him stems from his efforts to peddle to government investigative agencies the political slander that Donald Trump was a clandestine agent of Vladimir Putin’s Russian regime — at bottom, he is alleged to have concealed that the main client on whose behalf he labored in this endeavor was the Hillary Clinton campaign.
The crescendo toward which Durham appears to be building is a final report that will show the Trump–Russia “collusion” innuendo that gripped the country for three years was essentially concocted by Mrs. Clinton and her minions. Though some comparatively minor crimes may have been committed along the way, such a partisan scheme would not necessarily be a crime in and of itself. It would, however, be one of the dirtiest, swampiest political tricks of all time.
Sussmann’s trial is scheduled for May, but the case has already whipped Washington into a frenzy with allegations of political spying, counterclaims of a political witch-hunt, and now, the return of the ponderous Hillary herself. Shaking off her latest crash-and-burn, Mrs. C is back making speeches again, wheedling her way into position as the Democrats’ go-to 2024 alternative in the not-unforeseeable event that President Biden continues to stumble and Vice President Kamala Harris continues to speak. At a state Democratic convention in New York Thursday, Clinton could be heard inveighing that this latest criminal investigation hovering about her — which seems like the millionth criminal investigation to hover about her over the last 30 years — is yet another “right-wing lie” whose proponents are bordering on “actual malice” against her. (New York Times readers and Sarah Palin fans will recognize actual malice as the standard for proving libel — Hillary! remains subtle as ever.)
In any event, by the time Clinton was railing about Durham, Sussmann’s lawyers had already filed a pretrial motion to dismiss the false-statement charge.
It’s pretty standard fare: Sussmann claims there is no false statement as a matter of law because, he contends, Durham can’t prove that the alleged lie to the FBI was material. Materiality is the low-hurdle requirement that, to be prosecutable, a lie has to have been material to some decision the government had to make (like whether it would have been important to know, before deciding to pursue an investigation, that an explosive allegation that one major-party presidential candidate was a Putin puppet had actually been ginned up by the other major-party candidate).
The court will eventually rule on the Sussmann camp’s dismissal motion. In a high-profile, politically fraught case like this one, though, it would be most unusual for a judge to take it on himself to throw the indictment out before trial. Materiality is one of those “mixed questions of law and fact,” as they say in the biz — the jury decides whether, in fact, a lie was material, but the decision is controlled by legal precedents, so the judge also has the power to determine that the prosecutor hasn’t shown enough proof of materiality for the question to be submitted to the jury. The judge will get several other bites at this apple as the proceedings move along — during trial, when the prosecution rests, right before summations, and even post-trial if the jury finds Sussmann guilty — so there is no need to rule pretrial.
The issue, however, is central to the Sussmann case. Which brings us back to Cohn’s question: Who is the judge? Who is presiding over this case in which the machinations of Hillary Clinton’s campaign, and the Democrats’ Trump–Russia obsession, are the heart of the matter?
Funny you should ask. The case is assigned to Judge Christopher R. “Casey” Cooper, who was appointed to the bench by President Obama in 2014.
Judge Cooper is a protégé of the late Judge Abner J. Mikva, for whom he clerked on the prestigious D.C. Circuit Court of Appeals in 1993. Some of us of a certain age remember Judge Mikva as White House counsel to President Bill Clinton.
Mikva took that top Clinton-administration job in 1994, the same year Cooper joined the Justice Department as a special assistant to Clinton’s appointed deputy attorney general, Jamie Gorelick. While Cooper worked for Gorelick from 1994 until 1996, a major issue for the DOJ was the interplay, in terrorism cases, of crime-investigation techniques and foreign-intelligence collection under FISA (the Foreign Intelligence Surveillance Act). At the time, FISA surveillance applications were reviewed by the DOJ’s Office of Intelligence and Policy Review (OIPR). By 1996, another young prosecutor, James Baker, was working at OIPR.
Like Cooper and Baker, Michael Sussmann also worked at the Justice Department during the Clinton era. Like Baker, he stayed there for many years working on national-security issues. Eventually, Sussmann became an expert in cybersecurity law, which was his niche in private practice at Perkins Coie, where he represented the DNC after its servers were hacked. The Obama-era intelligence agencies and the Mueller investigation attributed the hack to Putin’s regime, but the matter is murky. In part, that’s because the DNC would not allow the FBI to examine its servers, and, for some reason, the FBI (where Baker was by then general counsel) did not get the Obama Justice Department to issue a subpoena for them.
Meanwhile, Cooper left the Justice Department in 1996, so he was no longer a top adviser to the deputy attorney general in 1997, when President Clinton appointed Eric Holder to that position. But by the time President Obama appointed Cooper to the bench in 2014, Holder was Obama’s attorney general. As AG, Holder needed a national-security counselor. He chose Amy Jeffress . . . who happens to be married to Judge Cooper.
In private practice, Jeffress recently represented Lisa Page, the former Justice Department and FBI lawyer who was embroiled in both the Clinton-emails and Trump–Russia investigations, and whose overt loathing of Trump was, shall we say, controversial. Page was plugged into the top hierarchy of the FBI under Director James Comey, because she was a special legal adviser to Comey’s deputy director, Andrew McCabe. She also worked closely with James Baker, a top Comey adviser and the Bureau’s general counsel from 2014 through 2017.
(Interestingly, Comey was appointed FBI director by Obama while Holder was AG. Holder’s 2008 nomination to the top job at the DOJ had initially run into some headwinds due to his complicity in President Clinton’s pardons scandal — particularly the pay-for-play pardon of Marc Rich. But the nomination was given a boost when Holder was publicly endorsed by Comey — who, besides having been President Bush’s deputy attorney general, had for a time been the prosecutor assigned to the Marc Rich case while Rich was a fugitive on the FBI’s “most wanted” list.)
In September 2016, the Clinton campaign decided to bring to the FBI its claim that Trump was a Putin plant and was using Alfa Bank, a major Russian financial institution, as a communications back-channel to the Kremlin. Sussmann was chosen to convey to the Bureau the Internet-traffic data that had been carefully mined by Rodney Joffe, a tech executive who allegedly hoped to score a job in what everyone assumed would be the Hillary Clinton administration.
Sussmann decided not to report the information through regular FBI channels. See, ordinary citizens who seek to report potential crimes or security threats contact the FBI and are referred to an agent. But unlike mere mortals, Sussmann is a big-cheese former DOJ cybersecurity official with big-cheese political connections. So he sought, and was granted, a meeting with the Bureau’s top lawyer, Baker — who, in later congressional testimony, conceded that this was indeed a very unusual way for the FBI to receive investigative information, since FBI lawyers are not FBI agents and generally try to stay out of the chain of evidence.
The meeting was one-on-one. Usually, a person with important information to pass along will meet with not one but two FBI agents (again, not FBI lawyers). That way, one agent can take notes while the other agent leads the questioning, and if, down the road, there is ever any dispute about what happened and what was said during the encounter, there are two FBI agents available to testify. Yet, when these two lawyers with longtime government experience in Washington got together to discuss whether the Republican presidential nominee might be a Russian spy, there was no one else in the room.
Baker is thus the only witness to Sussmann’s alleged false statement, which was neither digitally recorded nor transcribed. And Cooper is the judge hearing the case.
This is not John Durham’s first rodeo. He is 71, and has spent his entire professional life as a state and federal prosecutor in Connecticut. Over the decades, he has been asked to handle a number of politically sensitive, special-counsel-type investigations, precisely because he is not a Swamp creature. When the Sussmann trial starts this spring, he will be representing the United States government in a Washington, D.C., courtroom. But for him, this will not be a home game.