John Durham released a potential smoking gun in the case against Michael Sussmann on Monday night, as he published documents showing the Democratic cybersecurity lawyer messaged the FBI general counsel that he was not working on behalf of any client, when in fact he was working for the Clinton campaign.
Sussmann was indicted last September for allegedly concealing his clients — Hillary Clinton's 2016 presidential campaign and “Tech Executive-1,” known to be former Neustar executive Rodney Joffe — from FBI general counsel James Baker when he pushed since-debunked claims of a secret back channel between the Trump Organization and Russia’s Alfa Bank.
The September 2021 indictment alleged Sussmann lied when he said he was not providing the allegations to the FBI on behalf of any client when he was in fact doing so on behalf of Joffe and the Clinton campaign. Last year, Sussmann’s lawyers attempted to argue there was no evidence that Sussmann lied to Baker.
On Monday evening, however, Durham revealed Sussmann conveyed that lie in a text message to Baker on Sept. 18, 2016 — the night before their meeting at the bureau.
DURHAM SAYS EVIDENCE SHOWS SUSSMANN LIED WHEN PUSHING TRUMP-RUSSIA CLAIMS
“Jim – it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss,” Sussmann wrote to the FBI top lawyer. “Do you have availibilty [sic] for a short meeting tomorrow? I’m coming on my own – not on behalf of a client or company – want to help the Bureau. Thanks.”
“The Special Counsel has brought a false statement charge on the basis of a purported oral statement made over five years ago for which there is only a single witness, Mr. Baker; for which there is no recording; and for which there are no contemporaneous notes by anyone who was actually in the meeting," Sussmann’s lawyers claimed last year.
Durham revealed in October that Baker, who served as general counsel at the bureau from 2014 to 2018, will take the stand in the upcoming trial.
Sussmann denied wrongdoing, pleaded not guilty, and called upon a federal judge to dismiss the case against him, even relying in part on legal analysis by fired FBI agent Peter Strzok.
Lawyers for Sussmann asked a federal court to dismiss the false statements charge against their client in March, arguing Sussmann did not lie to the FBI when passing along Trump-Russia collusion claims and, even if he did, the lie was “immaterial.”
“The defendant’s false statement to the FBI General Counsel was plainly material because it misled the General Counsel about, among other things, the critical fact that the defendant was disseminating highly explosive allegations about a then-Presidential candidate on behalf of two specific clients, one of which was the opposing Presidential campaign,” Durham countered last month. “The defendant’s efforts to mislead the FBI in this manner during the height of a Presidential election season plainly could have influenced the FBI’s decision-making in any number of ways.”
In the indictment, Durham said Baker spoke with Bill Priestap, the assistant director of the FBI’s counterintelligence division, after meeting with Sussmann. Priestap “took contemporaneous notes” about the Sussmann meeting, including that Sussmann had said he was not doing his work "for any client," according to the indictment.
Durham said on Monday that Baker met with Priestap as well as FBI deputy general Trisha Anderson, and the special counsel sought the court’s permission to admit as evidence notes taken by both. Durham said that “in communicating with these officials, the General Counsel relayed the details of his meeting with the defendant, including defendant’s specific representation that he was not there on behalf of any client.”
The FBI assistant director wrote in his notes that Baker said Sussmann “said not doing this for any client.” The deputy general counsel’s notes said in part, “No specific client but group of cyber academics talked with him about research.”
Durham said “the Government moves to admit the Assistant Director’s and Deputy General Counsel’s contemporaneous handwritten notes on two grounds: as prior consistent statements by the General Counsel and as past recorded recollection as to these witnesses.”
Sussmann's lawyers on Monday told the court they were fighting to keep those notes out, repeating that Baker "did not record the meeting, take any notes of the meeting, create an official report of the meeting, or otherwise memorialize it."
"Now, in an improper attempt to bolster Mr. Baker’s testimony, the Special Counsel seeks to publish or adduce evidence of notes that two people who were not even in the meeting took regarding what was allegedly said in the meeting, even though these two people... have no reliable memory of even speaking to Mr. Baker about the meeting," Sussmann's lawyers lamented. "The Special Counsel claims that the notes may be properly admitted as past recollections recorded of Mr. Baker’s prior consistent statements. The Special Counsel is simply not correct, and Mr. Sussmann accordingly moves to preclude introducing the notes, eliciting any testimony about them, or publishing them."
Sussmann’s lawyers have said Sussmann met with the FBI in September 2016 “to pass along information that raised national security concerns” and characterized this as simply “to provide a tip.” The lawyers contended that Sussmann was “charged with making a false statement about an entirely ancillary matter — about who his client may have been when he met with the FBI — which is a fact that even the Special Counsel’s own indictment fails to allege had any effect on the FBI’s decision to open an investigation.”
Durham countered that “the defendant made his false statement directly to the FBI General Counsel on a matter that was anything but ancillary: namely, the existence … of attorney-client relationships that would have shed critical light on the origins of the allegations at issue.”
“The defendant’s false statement to the FBI General Counsel was plainly material because it misled the General Counsel about, among other things, the critical fact that the defendant was disseminating highly explosive allegations about a then-Presidential candidate on behalf of two specific clients, one of which was the opposing Presidential campaign,” Durham wrote.
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Durham has also said Sussmann told a U.S. government agency, believed to be the CIA, about the dubious Russian bank connection in a February 2017 meeting, in which Sussmann again allegedly misled about whom his client was. The special counsel said Sussmann claimed that data he had access to “demonstrated that Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House and other locations.” Durham emphasized that he found "no support for these allegations.”
The Clinton campaign touted the Alfa Bank claims in the closing days of the 2016 election, but special counsel Robert Mueller, the FBI, and a bipartisan Senate Intelligence Committee investigation did not uncover evidence of its veracity.