June 3, 2022

Michael Sussmann Acquitted

“A lawyer for Hillary Clinton’s 2016 presidential campaign was acquitted Tuesday of lying to the FBI when he pushed information meant to cast suspicions on Donald Trump and Russia in the run-up to that year’s election. The case against Michael Sussmann was the first courtroom test of special counsel John Durham since his appointment three years ago to search for government misconduct during the investigation into potential ties between Russia and Trump’s 2016 campaign.” AP News

See past issues

The left supports the verdict, and argues that Durham’s investigation has failed to uncover criminal behavior.

“To prove a charge of false statements, prosecutors must show that a defendant knowingly and willfully made a statement that was materially false. Here, the elements of falsity and materiality were both weak on their face…

“First, Sussmann’s affiliation with the law firm representing the Clinton campaign was already well-known, and if FBI agents thought they should discount the information based on this affiliation, they had the information they needed to make that assessment. Indeed, according to the indictment, notes written by one of [then-FBI general counsel James] Baker’s colleagues shortly after the meeting with Sussmann said, ‘Represents DNC, Clinton Foundation, etc.’…

“Second, at a previous meeting with congressional investigators, Baker had testified that the FBI investigates leads regardless of who provides them. In other words, it did not matter whether Sussmann was coming ‘on his own’ or on ‘behalf’ of any client. The weakness of the evidence was too much to overcome, and Sussmann was, predictably, acquitted.”

Barbara McQuade, MSNBC

“[Former AG Bill Barr] noted that it’s difficult to obtain guilty verdicts and suggested repeatedly that the jury was slanted. But he also pointed to a way in which Durham’s probe was supposedly successful: telling a story… ‘First, I think he crystallized the central role played by the Hillary campaign in launching as a dirty trick — the whole Russiagate collusion narrative and fanning the flames of it. And second, I think he exposed really dreadful behavior by the supervisors in the FBI, the senior ranks of the FBI, who knowingly use this information to start an investigation of Trump.’…

The role of the Justice Department is to enforce the law — not to expose ‘dirty tricks’ that haven’t been shown to be crimes. Yet Barr is basically suggesting the value of this investigation lay largely in getting information out there, regardless of whether that information is ultimately tied to a proven crime.”

Aaron Blake, Washington Post

“Mueller’s final report detailed ‘numerous links between the Russian government and the Trump Campaign.’ He obtained indictments in 2018 of 13 Russian individuals and three companies operating a troll farm in the United States to help the Trump campaign and then the indictments of the 12 Russian military intelligence officers who had directed the effort. He obtained six convictions of Trump officials who had connections to the Russians…

“The bipartisan Senate Select Committee on Intelligence found that ‘the Russian government engaged in an aggressive, multifaceted effort to influence, or attempt to influence, the outcome of the 2016 presidential election’ to favor Trump…

“The myopia of the Durham prosecutors was never more dramatic than when they argued that Sussmann’s actions in contacting the FBI were part of a Democratic effort to create an ‘October surprise’ to torpedo the Trump campaign. There was, of course, a truly dramatic and lethal surprise that October, but it came at the expense of the Democratic candidate and, many polling experts think, tipped the election to Trump: On Oct. 28, 2016, then-FBI Director James B. Comey announced he was reopening the Clinton emails investigation — at a time when the bureau had studiously kept secret its own three-month-old investigation of the Trump campaign’s dealing with the Russians.”

David E. Kendall, Washington Post

The right is disappointed by the verdict, but argues that the case exposed significant FBI misconduct.

The right is disappointed by the verdict, but argues that the case exposed significant FBI misconduct.

Mr. Sussmann was tight with the FBI. So tight that according to trial evidence, the bureau in 2016 allowed him to edit the draft of one of its press releases. Mr. Sussmann was even on a first-name basis with then-FBI general counsel James Baker. He was able to text his ‘friend’ (Mr. Baker’s description of their relationship) and score a meeting the next day. He assured ‘Jim’ he didn’t need a badge to get in the building—he already had one. All this allowed Mr. Sussmann (who later sought to recruit Mr. Baker to his firm, Perkins Coie) to avoid the pesky agents and questions that would accompany any average Joe trying to sell the FBI on wild claims…

“Getting the dirt to the top made all the difference. Prosecutors in the trial introduced an internal message from FBI agent Joseph Pientka two days after the Sussmann-Baker meeting, reading: ‘People on the 7th floor to include Director are fired up about this server. . . . Did you guys open a case? . . . Its [sic] not an option—we must do it.’ This despite testimony from rank-and-file agents who said they’d quickly dismissed the claims as ludicrous.”

Kimberley A. Strassel, Wall Street Journal

The FBI knew exactly who Sussmann was — he’d represented the DNC when its servers were hacked, and blocked the FBI from conducting its own forensic investigation. When Sussmann purveyed supposed evidence of a Trump-Russia communications back channel, the bureau knew full well that it was getting political information from a partisan source. The evidence at trial showed that FBI headquarters concealed Sussmann’s identity from the bureau’s own investigating agents. The FBI’s investigation-opening document falsely claimed that the information had come not from Sussmann but from the Justice Department…

“You can’t prove a false-statements charge unless it is established that the investigating agency was fooled by the lie. In Sussmann’s trial, the proof showed that the cover story did not fool the FBI; it enabled the FBI, which was second only to the Clinton campaign in its commitment to pursuing the Trump-Russia ‘collusion’ tale. Powerful federal agencies interfered in a presidential election, on behalf of one candidate against the other. The public needs accountability for that. It won’t get accountability if Durham continues to portray the FBI as a witless dupe, rather than a willing collaborator.”

Andrew C. McCarthy, New York Post

“Law professor Jonathan Turley noted that the jury ‘has three Clinton donors, an AOC donor, and a woman whose daughter is on the same sports team as Sussmann's daughter.’ Turley added: ‘With the exception of randomly selecting people out of DNC headquarters, you could not come up with a worse jury.’…

“‘Personally, I don't think it should have been prosecuted,’ the [jury] forewoman said of the case, ‘because I think we have better time or resources to use or spend to other things that affect the nation as a whole more than a possible lie to the FBI.’ What is striking about that is both the casual dismissal of ‘a possible lie to the FBI’ and the fact that in recent high-profile investigations of Trump-associated figures, prosecutors viewed ‘a possible lie to the FBI’ as a very serious matter. In fact, two of the most consequential cases launched by Trump-Russia special counsel Robert Mueller, those of Michael Flynn and George Papadopoulos, focused exclusively on the crime of lying to the FBI.”
Byron York, Washington Examiner

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