John Durham’s team apparently questioned the credibility of James Baker in a previous criminal leak investigation, with the former FBI general counsel now a key special counsel witness in the case against Democratic lawyer Michael Sussmann.
The indictment against Sussmann, a former Perkins Coie attorney, centers on a Sept. 19, 2016, meeting between him and Baker in which Sussmann pushed debunked allegations of a secret back channel between Russia’s Alfa Bank and the Trump Organization. Durham contends that while Sussmann told Baker he was not working for any particular client, he was secretly doing the bidding of Hillary Clinton’s campaign and billing his services to her, as well as working on behalf of technology executive Rodney Joffe. Sussmann denies misleading the FBI and pleaded not guilty.
Sussmann’s defense lawyer, Sean Berkowitz, revealed the existence of a Durham team memo purportedly undercutting Baker during a Wednesday virtual status conference hearing in federal court.
“From day one, we have been asking for a memo that was prepared in another case involving Mr. Baker — an investigation where Mr. Baker was interviewed, and we understand that the special counsel or someone on his team drafted a memo questioning Mr. Baker’s credibility, and we don’t understand why we haven’t seen that yet,” Berkowitz told the judge. “We think that such a memo exists, and we think that goes to the heart of things, so we would be very interested in getting a date certain on that.”
Andrew DeFilippis, a prosecutor on Durham’s special counsel team, did not dispute the characterization of the memo on Baker and said the Durham team met with a non-DOJ agency about the memo on Wednesday.
“We have been working diligently on the defense’s request in that regard. In fact, just today, the special counsel team met with the relevant agency in question that has equities in that memo in addition to the DOJ,” DeFilippis said. “They are undergoing a process of getting that document in a form that will be releasable to the defense with some redactions of national security information. … We are hopeful that early in the new year, we will have it for them to produce in a redacted form.”
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Judge Christopher Cooper, appointed to the bench by former President Barack Obama and presiding over the Sussmann case, said he would “set a date for the first week of January” for the memo to be provided.
The fact that Baker had once been the subject of a criminal leak investigation was revealed by Republican Rep. Jim Jordan, then the ranking member on the House Oversight Committee, in a letter to Durham in January 2019, when Durham was still a federal prosecutor for Connecticut and not yet special counsel.
House Republicans learned about Baker being investigated by Durham from Baker’s then-attorney, Daniel Levin, when the former FBI top lawyer appeared in front of the House Judiciary and Oversight committees in October 2018.
Jordan asked Baker about his relationship with David Corn, a reporter with Mother Jones who penned an infamous article on Halloween 2016. The article cited, though not by name, British ex-spy Christopher Steele and his discredited dossier.
Baker described Corn as a “long-time friend” who he spoke with “every few months or so.” When asked if he spoke with Corn in the lead-up to the 2016 election, Baker said he did.
The Ohio Republican then asked if Baker had spoken with Corn about anything the FBI was working on, specifically Steele's dossier, and Levin interjected, spoke with Baker off the record, then revealed Durham’s investigation into Baker, using its existence to say his client wouldn’t answer more questions on that line of questioning.
“You may or may not know, he's been the subject of a leak investigation which is still — a criminal leak investigation that's still active at the Justice Department,” Levin said. “So, I am cutting off … I'm cutting off any discussion about conversations with reporters.” Baker’s attorney added that the investigation was being conducted by “the Justice Department. John Durham.”
Baker, who left the FBI in 2018, previously defended the flawed Trump-Russia investigation and the FBI’s handling of Steele’s dossier. Steele’s main source, Igor Danchenko, was also indicted by Durham for allegedly lying to the FBI. Baker was involved in the sign-off process of at least the first Foreign Intelligence Surveillance Act warrant application targeting Trump campaign adviser Carter Page.
Sussmann’s team claimed on Monday that last week, Durham’s team handed over documents about Baker’s statements about the 2016 meeting with Sussmann that “directly contradict the Special Counsel’s allegation that Mr. Sussmann affirmatively told Mr. Baker that he was not meeting with him on behalf of any clients.”
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But Durham’s team pushed back on Tuesday, saying “the defendant’s motion entirely ignores law enforcement reports of Mr. Baker’s subsequent three interviews with the Special Counsel’s Office in which he affirmed and then re-affirmed his now-clear recollection of the defendant’s false statement.”
Durham’s team plans to call Baker to testify to prove its case and says there is evidence from five government employees that Sussmann had lied.