Durham’s Work Must Go On, despite Sussmann Acquittal

T he usual suspects are taking the acquittal of Democratic lawyer Michael Sussmann as proof that Special Counsel John Durham never had a real case to investigate. Instead, it should put a spotlight on what really needs investigating: the FBI’s role in the Trump–Russia “collusion” farce.

In the case that Durham unwisely brought, the FBI played the part of the victim. And there is no serious question that Sussmann lied to it. He conveyed an allegation that Donald Trump, at the time the Republican presidential candidate, had established a communications back channel with the Kremlin through servers at Russia’s Alfa Bank. While the allegation was based on misleadingly mined Internet data, the lie at issue in the trial was Sussmann’s claim not to be representing a client. At the time, he was in fact representing both the campaign of Trump’s opponent, Hillary Clinton, and the tech executive who had compiled the data, Clinton partisan Rodney Joffe.

We have smoking-gun proof that Sussmann lied: a text message he sent the night before his September 19, 2016, meeting with the FBI. Sussmann — a former Justice Department cybersecurity lawyer — assured his old friend James Baker, then the FBI’s general counsel, that he wanted to bring the “sensitive” information only to “help the Bureau,” and not on behalf of any client.

At the time of the indictment, though, Durham did not have the text. Inexplicably, he did not obtain it until a few weeks before the trial, which was after the five-year statute of limitations had elapsed. The jury was thus told it could not find a false statement based on the text standing alone. Given that the one-on-one meeting between Sussmann and Baker was not recorded, and that Baker has given conflicting accounts of what was said when questioned about it over the years, Durham had a weak case.

Still, the principal impediment to conviction was the FBI itself.

Baker’s claim to have accepted Sussmann’s cover story rang hollow. The FBI knew exactly who Sussmann was. He was well known for representing top Democrats along with his then–law partner, Marc Elias (the main lawyer for the Clinton campaign). Moreover, the DNC had retained Sussmann earlier in 2016 to deal with the FBI in connection with its allegation that Russia had hacked its servers. Under Sussmann’s guidance, the DNC had resisted surrendering its servers to the FBI for forensic examination — instead hiring a private contractor, Crowdstrike. The notion that, just six weeks before Election Day, a top Democratic lawyer had no partisan motivation in bringing the FBI derogatory information about Trump, and that information just happened to support the Democratic smear of Trump as a Putin puppet, was laughable.

And sure enough, in the Sussmann trial’s most notable testimony, Clinton campaign manager Robby Mook admitted that Hillary Clinton had personally approved leaking the Trump–Putin back-channel tale, which the campaign knew to be dubious, to the media. Once the media began running with the Alfa Bank story, just days before the election, Hillary Clinton herself (along with her aide Jake Sullivan, now Biden’s national-security adviser) amplified the news in tweets that anticipated an imminent FBI investigation.

Sussmann had brought the FBI the Alfa Bank information only after Joffe had curated it in conjunction with Fusion GPS: the same firm the campaign’s lawyers had hired to dig up Russian dirt on Trump, and which duly generated the infamous Steele dossier, which was also peddled to the FBI in an effort to portray Trump as a clandestine agent of the Kremlin. As we now know, thanks to an internal Justice Department investigation, the FBI used the dossier’s tawdry claims of a corrupt Trump–Russia conspiracy, without verifying them, in order to obtain spy warrants from a secret federal surveillance court.

The Sussmann trial showed the bureau engaging in similar machinations regarding the Alfa Bank data.

After Baker took Sussmann’s information and briefed his FBI superiors, they decided to assign agents to investigate the Alfa Bank data but conceal Sussmann’s identity from the agents. This “close hold” helped to keep a lid on news that the bureau had taken opposition research from a patently partisan source in the stretch run of a political campaign. Cybercrime agents had to assess the data without the key context of the source’s identity and motivations.

The agents nonetheless quickly determined that the information was bogus and that the source, if not incompetent, probably had an agenda. Nevertheless, headquarters directed the agents to turn the case into a counterintelligence probe (which, we’d note, is classified and thus a better vehicle for keeping shoddy sources under wraps).

The FBI went even further in concealing the truth. Agents claimed that the information provided by Sussmann had come from the Justice Department — a false statement that none of the agents called to testify could, or at least would, explain.

It is hardly shocking, all in all, that a jury would find the FBI was not really deceived — particularly a jury that included Democratic partisans whom the Obama-appointed judge declined to exclude. The media-Democrat complex, naturally, will cite the acquittal as a rationale for discrediting Durham’s investigation and dismissing his eventual report. But the trial shows that Durham must complete his work and provide a full accounting of the FBI’s misconduct in the pernicious Trump–Russia probe.