Was lying to the FBI part of a conspiracy to defraud the government into promoting a Trump-Russia ‘collusion’ narrative to help Hillary win?
Was lying to the FBI part of a conspiracy to defraud the government into promoting the Trump-Russia hoax to help Hillary win?
D emocratic lawyer Michael Sussmann is a lone defendant charged in a single count with a narrow crime. More important, though, he was a participant in a “joint venture” to get Hillary Clinton elected president by deceptive means. That is the theme of Special Counsel John Durham’s court filing this past weekend. Prosecutors plan to make it the theme of their case against Sussmann, whose trial is set to begin on May 16.
That is, the prosecutors will make it their theme if Judge Casey Cooper allows it. That is no sure thing.
The joint venture Durham would like to prove is a big scheme: a conspiracy to defraud the government into investigating Hillary Clinton’s opponent in the 2016 election, Donald Trump, on suspicion that he was a clandestine agent of Russia. Such evidence would not only be admissible, it would be essential, if Durham had charged a conspiracy to defraud the government. But the crime he has alleged is far more modest: He has charged only Sussmann, not any of his alleged collaborators, and only for telling one lie to the FBI at a brief meeting on September 19, 2016, not for scheming to defraud the government.
To be sure, federal criminal law liberally permits prosecutors to prove background facts that are necessary to put the charged crime in context — even if those background facts are themselves incriminating and uncharged. Here, Durham persuasively maintains that Sussmann’s alleged lie was inextricably tied to the big scheme. Indeed, the prosecutor plausibly contends that without the lie, the scheme to dupe the FBI into investigating Trump over a communications “back-channel” he had supposedly established with the Kremlin, would have had scant chance of success.
That said, though, there comes a point in criminal trials where judges grow concerned about the tail wagging the dog. That is, they worry that the gravity of the misconduct suggested by uncharged background evidence may inflame the jurors, unfairly prejudicing their consideration of the crime that is actually charged in the indictment.
Let’s consider a hypothetical. Picture a defendant who launders money that he is suspected of being paid for committing a contract murder. The prosecutor charges only the money laundering — he has to because the statute of limitations is about to lapse, so if he doesn’t indict, the money-laundering count will be time-barred. But he is still investigating the murder, which has a different statute of limitations. The prosecutor believes he has amassed enough compelling evidence tying the defendant to the murder that he could convince the jury that the defendant laundered the money solely because of the murder (i.e., to conceal his connection to it). In fact, the prosecutor was confident enough of his murder proof that he described some of it in the money-laundering indictment, though he did not charge a murder count.
Logically, the prosecutor should be able to present at least some evidence of the uncharged murder to explain the context of, and motive for, the charged money-laundering offense. Murder, however, is a more heinous crime than money laundering; the judge will be concerned that the jury could convict because it believes the defendant is a murderer, rather than because the proof of money laundering is compelling.
This is a common situation, and the Federal Rules of Evidence anticipate it. Uncharged acts and crimes are admissible for various commonsense reasons: to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. There is no requirement that the uncharged acts be established beyond a reasonable doubt; that high burden of proof applies only to the charged crime.
Moreover, with regard to any evidence offered in a trial, the judge must weigh the probative value against the danger of unfair prejudice, jury confusion, or waste of time. If the probative value for purposes of establishing the crime charged is “substantially outweighed” by these possible downsides, it may be excluded. The word substantially is significant. It means that the law’s default position favors allowing relevant evidence to be presented to the jury (with the court instructing the jury about any limits on its use), yet the judge retains discretion to suppress any evidence that is clearly more inflammatory than illuminating.
In Sussmann’s case, the charged crime of lying to the FBI is a less serious offense than the uncharged scheme to defraud the government in connection with a presidential election. Furthermore, the evidence that Sussmann lied appears very strong: He told the FBI (including in a text message) that he was not representing any client, but Durham has extensive evidence that he was actually representing the Clinton campaign and Rodney Joffe. (Joffe is a tech executive and was a client of Sussmann’s. Sussmann collaborated with him in curating the dubious Internet data he brought to the FBI — with the lawyer all the while billing the Clinton campaign for his time.)
Why is all that worth noting? Well, when the crime charged in an indictment is less serious than the uncharged misconduct that prosecutors seek to prove as background evidence, a judge will often be inclined to limit or even preclude the background evidence. Also, if the proof that supports the charged crime is extremely strong, judges will frequently reason that the prosecutor does not really need the background evidence in order to sway the jury. That is, even though the background evidence could properly be admitted, the judge may decide that prudence dictates excluding it, to avoid any possibility of a likely conviction’s being reversed on appeal.
More to the point, any sensible judge is going to say to himself: There was an easy way for Durham to make sure that the evidence of a broad scheme to defraud the government would be admissible — he could have charged it as a crime, rather than merely offering it as contextual evidence of a lesser crime; so why didn’t he do that?
As I detailed over the weekend (and as Rich Lowry and I discussed on The McCarthy Report podcast), Durham and Sussmann’s defense lawyers have been arguing over the admissibility of evidence — the usual pretrial dueling known as “motions in limine.” On Saturday, Durham summarized his theory for offering evidence that Sussmann was collaborating with operatives of Hillary Clinton’s 2016 presidential campaign when Sussmann allegedly lied to the FBI to conceal the identities of his aforementioned clients.
“A joint venture plainly existed here,” the prosecutor contended.
I will address the contours of the joint venture in a separate column. They deserve a more elaborate explanation because the joint venture is the heart of Durham’s investigation. Remember, Durham’s mandate from Trump’s attorney general, Bill Barr, who eventually appointed Durham as a special counsel, is to get to the bottom of how and why, based on what appears to be a bogus evidentiary predicate, the FBI and the Justice Department launched an investigation of a major-party presidential campaign — and, ultimately, the then-sitting president, Donald Trump — on the theory that he was a clandestine agent of Vladimir Putin’s regime. Durham is now in the fourth year of that probe (his ability to meet witnesses and conduct grand-jury sessions having been greatly complicated by the Covid-19 pandemic).
Against that very consequential objective of the probe, the false-statements prosecutions that Durham has brought pale in comparison — the indictment of Sussmann; the indictment of Igor Danchenko for allegedly lying to the FBI about his sources for the spurious information he provided for the absurd “dossier” compiled by former British spy Christopher Steele; and the prosecution of FBI lawyer Kevin Clinesmith, who pled guilty to making a false statement regarding former Trump campaign adviser Carter Page’s informant status with the CIA (in connection with an application to the FISA court to extend the surveillance of Page).
Unlike the many false-statements cases charged in the Mueller probe, Durham’s false-statements charges are not mere “process crimes.” That is, these were not lies to the FBI generated by interviews conducted because of Durham’s investigation; they are alleged lies to the FBI in furtherance of the big fraud scheme against the government for the purpose of trying to cinch the election for Clinton and, later, to undermine Trump’s presidency. Durham argues that the charged lies would not have happened absent the broader fraud scheme and were vital to the success of that scheme. For the jury to understand Sussmann’s alleged lie, and the criminal intent behind it, Durham contends that the jury must understand the fraud scheme.
To which Sussmann’s camp counters: If there really were a fraud scheme, Durham would have charged it.
So could Durham have charged it? Federal law seems to say yes . . . though, to repeat, evidence rules should allow him to prove it despite the lack of a formal charge.
The salient statute is section 371 of the penal code, which prescribes two distinct conspiracy offenses: conspiracy to commit any federal crime, and conspiracy to defraud the United States. We are talking here about the latter.
I have always been a critic of the fraud conspiracy — not of the crime as Congress long ago prescribed it, but as it has been extravagantly construed by the Supreme Court and predictably stretched by prosecutors. Section 371 makes it a crime “to defraud the United States, or any agency thereof in any manner or for any purpose.” The commonly understood meaning of defraud is to deprive a person or entity of money or property. But in some early-20th-century cases, the Supreme Court held that the concept is broader than that. As Chief Justice (and former President) William Howard Taft put it in Hammerschmidt v. United States (1924):
To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention. [Emphasis added.]
In 1987, the Court reaffirmed that Section 371 reaches “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government,” and the federal courts have construed this promiscuous warrant to mean that the deceptive acts involved need not be separately codified as crimes by Congress. In essence, I believe this improperly invites prosecutors (i.e., the executive branch) to prescribe crimes (a legislative function) by portraying them as acts designed to frustrate, however minimally, the operations of any agency in the sprawling administrative state.
But of course, it doesn’t matter what I think. Federal jurisprudence has unleashed the Justice Department to prosecute such cases, and the DOJ’s manual has a section instructing prosecutors accordingly. This is not a prosecutorial theory that the activist Democrats on Mueller’s team conjured up for Paul Manafort and other Trump associates. It’s been around for a long time. It is, nevertheless, arguably inconsistent with then–Attorney General Barr’s admonition that, in the context of rough-and-tumble American politics, the Justice Department should only prosecute “meat and potatoes” crimes — i.e., serious, patently criminal acts, not unsavory behavior that prosecutors creatively indict even if it’s not clear that Congress ever intended to criminalize it. Otherwise, law-enforcement could become a political weapon and our electoral politics could be stifled by the incumbent administration’s prosecutors.
Analogous to my hypothetical above, Durham was up against a five-year statute of limitations. Sussmann’s alleged false statement occurred in the context of a meeting with the FBI’s then general counsel, James Baker, on September 19, 2016. The prosecutor thus had to indict before September 19, 2021, or lose the charge. Meantime, he is still investigating the broader scheme, which has a somewhat longer limitations period.
There is no doubt that this theme of fraud on the government will figure prominently in Durham’s final narrative report. The question for now is whether he thinks there is a case of conspiracy to defraud the government that is so compelling that it should be indicted, despite all the downsides of Section 371. On that question, Durham has not yet made up his mind. He recently represented to Judge Cooper that he is still evaluating whether data provided by Sussmann to the FBI (and later, to the CIA) was fraudulently fabricated, as the CIA appears to believe. His investigation is ongoing, and he has indicated that Rodney Joffe, who collaborated with Sussmann in compiling the data, could still be indicted, as could others. Durham could end up launching a major fraud prosecution that implicates other Clinton operatives.
Still, he hasn’t done that up to this point. And he may never do it.
In the interim, he has a case to try against Sussmann. The line he is walking is to prove the big Clinton campaign scheme to smear Trump as a Putin puppet, not as a crime in and of itself, but as significant background evidence in proving that Sussmann made a false statement to the FBI. Durham’s argument in support of the admissibility of this background big-scheme evidence is legally sound. But with trial just three weeks away, whether Judge Cooper will allow the jury to hear all of it, some of it, or none of it is the huge question hovering over the case.