The detail of Michael Sussmann’s FBI badge shows, yet again, that the FBI is the soft underbelly of John Durham’s case.
The detail shows, yet again, that the FBI is the soft underbelly of John Durham’s case.
W hy on earth did Clinton lawyer Michael Sussmann have a badge permitting him to enter FBI headquarters?
That was one of those tantalizing bits of evidence that emerge during a trial, the kind that seems jaw-dropping to close observers of the events in question but that instantly disappears into the mist if neither party sees an upside in dwelling on it.
It came up fleetingly when prosecutors introduced Sussmann’s now infamous Sunday night text message to the personal cellphone of his friend James Baker, then the FBI’s general counsel, in which Sussmann asked for a meeting the next day.
Sussmann told “Jim” he wanted to deliver “sensitive” information — as it turned out, bogus evidence of a communications back channel between then–GOP presidential candidate Donald Trump and the Kremlin. He assured Baker, “I’m coming on my own — not on behalf of a client or company — want to help the Bureau.” That is the alleged false statement charged against Sussmann, who was representing the Clinton campaign at the time.
After Baker quickly agreed to meet at his FBI office the next day, he asked Sussmann, “Do you have a badge or do you need help getting into the building?” Sussmann responded, “I have a badge.” He asked just for Baker’s room number; the badge gave him all the access he would need to get to the offices of the FBI’s top officials.
How peculiar, no? Sussmann is no longer a Justice Department lawyer. He left the government years ago and has been a highly compensated lawyer in private practice ever since.
In fact, before his role in peddling the Trump–Russia farce came to light, the last time Sussmann came to public attention was when the Democratic National Committee retained him to deal with the hacking of its servers. According to then–FBI director James Comey, the FBI badly wanted to examine the servers as part of its investigation. But with Sussmann as its counsel, the DNC refused to allow this; Sussmann instead retained a private contractor, Crowdstrike, to do the analysis. Because the Obama Justice Department curiously did not issue a subpoena or obtain a search warrant for the servers, the DNC rather than the FBI was able to control the investigation — making any criminal case virtually impossible to prove in court.
Perhaps that’s why, in his September 18, 2016, exchange of texts with Baker, Sussmann felt the need to assure Baker that he just “want[ed] to help the Bureau.” Plainly, that’s not always his agenda. In any event, we know for sure that Sussmann was not in the Bureau. So why does he have a badge?
We are talking here about access to one of the most closely guarded installations in the federal government. It is a repository of the nation’s highest-level classified intelligence and most sensitive law-enforcement information. Even government officials cannot just walk into the Hoover Building if they are not FBI officials. They have to get special access from the Bureau. Why, then, would special access be given to Sussmann, a private lawyer, whose clients’ interests are sometimes opposed to the government’s? And now that we’re thinking about it, why would Baker have assumed — correctly, as it turns out — that Sussmann might, indeed, have a badge granting him access?
For now, we don’t know. We should know, but in the Sussmann trial, it’s not in either side’s interest to explore the matter.
The defense doesn’t want to dwell on this point. Prosecutors have framed their case against Sussmann as being about “privilege” — the Washington insider sense of entitlement that makes hotshot, politically connected former federal officials feel like they are at liberty to manipulate the FBI into furthering their political schemes.
The thrust of Durham’s presentation is that Sussmann not only lied to the FBI but betrayed the FBI’s trust. To get in the door to see Baker, Sussmann exploited his status as a former Justice Department lawyer (and the impression that American national security remains a priority for him). He took advantage of his friendship with Baker, formed when they were DOJ colleagues.
Already painted as a quisling, the last thing Sussmann needed was to highlight that the FBI had even given him privileged access to its headquarters. It’s not a good look for him in a jury trial.
More intriguing are the special counsel’s interests.
I’ve pointed out a number of times (see, e.g., here and here) that the biggest complication in Durham’s investigation is the FBI. In three-plus years, Durham has brought three prosecutions, all for false statements to the FBI. That is, his theory is that the FBI was duped by people who hyped the canard that Trump was a clandestine agent of Russia. To those of us who closely followed the Trump–Russia “collusion” farce (I wrote a book about it in 2019), this is a very dubious proposition.
It is a proposition, though, that no doubt explains why Durham has not brought the big fraud-conspiracy charges that Trump partisans continue to crave. You can only have the big case if the FBI is complicit in the fraud — including fraud on the FISA court, from which the Bureau obtained secret surveillance warrants based on the representation, under oath, that the Trump campaign was suspected of collaborating with the Kremlin. But the special counsel is making the opposite claim. According to the charges Durham has filed, including in Sussmann’s case, the FBI was deceived by, not in cahoots with, people who peddled defamatory information about Trump.
Consequently, any evidence suggesting that Sussmann and the FBI were in a close, cooperative relationship does not help Durham’s case. To establish Sussmann’s guilt, the prosecutors must prove two things beyond a reasonable doubt: The first is that Sussmann made a false statement. There doesn’t seem much doubt about that: He was representing the Clinton campaign but claimed he wasn’t representing anyone. The second is that the false statement was material. This requires showing that the lie could have made a difference to how the FBI handled the investigation.
On that score, Sussmann’s contention is that the FBI wasn’t deceived at all, because the bureau knew exactly who he was, how his practice focused on cybersecurity and intersected with the government’s own work, and who his clients were — particularly, that they included top Democrats who were publicly claiming that Trump was colluding with Russia.
Despite all of that, the FBI’s general counsel immediately granted Sussmann’s request for a meeting — on the remarkable premise that Sussmann’s patriotic interest in U.S. security made any political considerations irrelevant. And now it turns out that Baker didn’t even have to let Sussmann in the building. With everything the bureau knew about Sussmann — his political clients, his then-recent frustration of the FBI’s desire to conduct forensic examination of the DNC servers — he nevertheless was permitted to have his own badge, giving him the run of the place, as if he were an FBI lawyer.
According to his testimony last week, after he took possession of Sussmann’s supposed evidence of a Trump–Russia communications pipeline, Baker immediately informed the FBI’s top brass — director James Comey, deputy director Andrew McCabe, and top counterintelligence agent Bill Priestap. After those consultations, Baker gave a strange instruction, one that protected Sussmann at the risk of compromising the investigation: Baker shielded Sussmann’s identity from agents who were tasked to examine the Internet data Sussmann had proffered. This put the agents in an awkward position since, for any competent assessment of evidence, investigators want to know the source so they can weigh any obvious motives.
Weirdly, there is no indication that Sussmann asked Baker to treat him as a confidential informant. Nor is it apparent that there would have been any threat to Sussmann’s security if he were ever identified as the source. The Clinton campaign conceived the Trump–Russia story as a political narrative. The point of such a narrative is to publicize it. It was well-known in media circles that Sussmann was peddling the Trump–Russia story. At the time he urged it on the FBI, he was trying to get the New York Times to publicize it, and the Clinton campaign was pushing it on other journalists. Sussmann defense claims notwithstanding, it sure looks like his main purpose in going to the FBI was to make the story — based on weak evidence — more salable to the press, in hopes of damaging Trump on the eve of the election.
More than concern about Sussmann, the shielding of his identity looks like the bureau protecting the bureau. It looks like the FBI well knew it was taking information from a source whose political motives were readily apparent, and decided to cover its tracks, even if this concealment made it more difficult for the bureau’s own investigators to do their job.
If, as Durham’s prosecutors say, Sussmann was privileged, it is because the FBI privileged him. Was that because Sussmann and the FBI were on the same side? After all, at the same time Sussmann was bringing the FBI the tale about a Trump–Russia communications back channel, the FBI was gearing up to apply to the FISA court for a surveillance warrant based on the Steele dossier. The dossier just happened to have been generated by the same Clinton campaign. Indeed, the campaign’s opposition researchers, Fusion GPS, included the communications back-channel claim in the dossier after consulting with Sussmann.
And in a shocking departure from its own internal regulations (and FISA court rules), the FBI did not independently verify the claims in the dossier before alleging them, under oath, in surveillance warrant applications. Instead, the FBI blindly relied on the people who gave it the information. And what a coincidence: Just as Baker withheld from investigating agents that the source of the Trump–Russia back-channel claim was a lawyer for the Clinton campaign, the FBI withheld from the FISA court that the Steele dossier was political-opposition research, generated at the behest of lawyers for the Clinton campaign.
Trump devotees insist that the FBI conspired with the Clinton campaign to undermine Trump.
Durham, to the contrary, theorizes that the FBI was duped by the Clinton campaign. I’ve always believed it’s more complicated than either of those assessments. The Bureau’s upper echelon, while always Trump-hostile, was more aggressively anti-Trump after the election than before (assuming, as it did, that Clinton would win). Indeed, I related over the weekend the story of how the FBI harpooned the Clinton campaign’s Trump–Russia collusion smear on the eve of the election. Yet, after the election, the FBI doubled down on collusion, willfully contributed to the public portrayal of Trump as a suspected Putin puppet, and continued to obtain FISA warrants by relying on the Steele dossier long after the dossier claims (which were always absurd) had been discredited.
The best that can be said for the FBI is that those who brought it claims of Trump–Russia corruption were pushing on an open door.
It would not help Durham’s case to highlight that the FBI’s door was so open to Sussmann that he didn’t even have to knock. But regardless of how it impacts the Sussmann trial, the public deserves an explanation of why Sussmann had a badge allowing him to enter and wander around FBI headquarters, and why the FBI brass took such extraordinary measures to conceal Sussmann’s identity as the source of the Trump–Russia information.