Baker refused to back off his claim that Sussmann said he was not representing a client when he came forward with the Trump-Alfa Bank evidence.
Former FBI general counsel James Baker was the only witness to testify in attorney Michael Sussmann’s false-statement trial on Thursday, standing by his story — that Sussmann approached him with dirt on the Trump campaign as a “good citizen” and not on behalf of any client — throughout hours of testimony under both direct examination by the prosecution and cross-examination by the defense.
Baker began his testimony Thursday morning by stating that he was “100 percent confident” that Sussmann said that he was not representing any client when he came forward with evidence of communications between the Trump Organization and Russia’s Alfa Bank in September, 2016 — a key admission given the prosecution’s central claim that Sussmann lied to the FBI about his motivation for presenting the evidence. Sussmann and Baker were former Department of Justice colleagues but Sussmann was representing the Clinton campaign as a lawyer at Perkins Coie at the time he sought the meeting.
During his time with Baker in the afternoon, prosecutor Andrew DeFillippis drilled down on the materiality of Sussmann’s alleged lie. Under the prosecution’s theory of the case, Sussmann went to Baker with the information as a representative of both the Clinton campaign and tech executive/cybersecurity expert Rodney Joffe, whose firm Neustar, another Perkins Coie client, dug up the alleged evidence in the form of internet communications between the Trump Organization and Alfa Bank.
Baker said that there were “multiple dimensions” to the significance of Sussmann’s claim that he was acting as a “good citizen” and not on behalf of a client when he produce the Trump-Alfa Bank evidence, suggesting that the alleged misrepresentation influenced his decision-making in a number of ways. Among those he listed were: Whether he would have taken the meeting, whether he would have had others present at the meeting, how he would have “assess[ed] the reliability” of the information, and whether he would have submitted the information to a legal review by other lawyers at the bureau.
If Sussmann had come to him specifically on behalf of the Clinton campaign, Baker said that he and the FBI “would have looked at it differently” because the bureau was “wary” of “being played” by political actors.
Baker did not outright say that if Sussmann had explicitly come on behalf of the Clinton campaign, the FBI would not have opened up a full investigation of the Trump-Alfa Bank connection, but did say it might have made it more difficult.
Defense attorney Sean Berkowitz began his cross-examination by noting that while Baker had met with the prosecution quite frequently pre-trial, he had rebuffed requests to meet with the defense. Baker said that he delegated that decision to his attorney, Daniel Levin.
While Baker’s claim that Sussmann said he wasn’t there on behalf of a client during their meeting is disputed, a text from Sussmann to Baker from the day before the meeting supports Baker’s version of events.
“I’m coming on my own — not on behalf of a client or company,” reads the text, which was obtained by Special Counsel John Durham’s team.
Asked about the significance of the text, Baker said that the message “did factor into my decision” to take the meeting.
When Berkowitz asserted that it wasn’t a major factor, Baker replied “I disagree with that.”
Berkowitz presented evidence of statements Baker made under oath to Durham in March of this year in which he indicated that the text didn’t factor heavily into his decision. Baker said that that interview was conducted on the day that he found the 2016 text from Sussmann requesting a meeting, characterizing it as “a very difficult” and “upsetting” day.
“As I think about it today, that’s not accurate,” said Baker of his March testimony on that point.
Berkowitz tried to point out any and every inconsistency in Baker’s testimony over time. At different points, Berkowitz noted, Baker had said he was and was not aware of Sussmann’s work for the Democratic National Committee and Clinton campaign at the time he met with Sussmann.
Baker said his final position was that he was aware that Sussmann was representing those clients when he took the meeting, citing notes from a conversation he had with with Bill Priestap — the first member of the bureau he spoke to after his conversation with Sussmann — that indicated that he told Priestap about Sussmann’s professional relationships.
Most notable were Berkowitz’s attempts to get Baker to admit to the possibility of his having been told by Sussmann that the Perkins Coie lawyer came to him on behalf of a client. Baker never conceded that point.
In support of that theory, Berkowitz cited testimony Baker gave to the Office of the Inspector General in July 2019. Under questioning then, Baker said that Sussmann came to him with information he received from “people that were his clients,” and that those clients were cybersecurity experts. Testifying earlier on Thursday morning, Baker told DeFilippis that he had used the word “clients” as a kind of “shorthand.”
Under questioning by Berkowitz, Baker said that the term was “inaccurate,” just as he had while responding to DeFelippis, and that he did not believe that the cybersecurity experts were Sussmann’s clients when he spoke to the OIG. When Berkowitz probed to see if Baker had used the word because it was “possible” that Sussmann had used that term, Baker gave a simple “no” in answer.
In another dramatic moment, Berkowitz presented Baker with notes taken by Tashina Gauhar’s during a March 6, 2017 briefing meant to bring Acting Deputy Attorney General Dana Boente up to speed on the investigation into Donald Trump’s ties with the Russian Federation. Gauhar was a senior DOJ official at the time.
The notes included a line about the Alfa Bank allegations that read: “‘Attorney’ brought to FBI on behalf of his client.” Baker said that then-deputy director of the FBI, Andrew McCabe was the one who delivered the briefing. Berkowitz extracted that Baker was in attendance at the meeting and had no recollection of correcting McCabe, however.
Asked if the document refreshed his recollection and made him reconsider his claim that Sussmann had not discloses his clientele, Baker answered in the negative.
“To the contrary,” said the star witness.
Berkowitz ended the day by reminding Baker of the criminal consequences of perjury and wondering if the prosecution had applied any pressure on Baker over the course of their many conversations.
Baker told the audience that Durham’s team had “never threatened me in any way.”
Berkowitz will resume his cross-examination of Baker on Friday morning.