In the Sussmann Trial, What a Difference a Text Makes

A text message, first located about two months ago, completely changed the prosecution’s case against Democratic lawyer Michael Sussmann. In particular, it wrecked the essence of Sussmann’s defense.

For those who haven’t been following the case, Sussmann is alleged to have lied to the FBI to conceal the identity of the clients on whose behalf he peddled to the bureau an iteration of the Clinton Campaign’s Trump–Russia “collusion” smear. Specifically, Sussmann pushed the so-called Alfa Bank angle, in which the campaign claimed Donald Trump had maintained a secret communications back channel to the Kremlin through servers at Alfa, an important Russian bank.

The FBI official to whom Sussmann allegedly lied in September 2016 was the bureau’s then–general counsel, James Baker. Our Isaac Schorr, who is providing great coverage of the trial from the courtroom, reported earlier today on Baker’s testimony. (I’d also recommend checking out Isaac’s excellent coverage of the testimony by Clinton lawyer Marc Elias. I’ll have more to say about Elias’s testimony in a later post.)

When Special Counsel John Durham got the grand jury to indict Sussmann in September 2021, shortly before the five-year statute of limitations on the false statement would have expired, it seemed like a real roll of the dice.

In the familiar FBI practice, the subject of an interview is questioned by two agents. One leads the questioning, the other takes careful notes. Those notes are memorialized on the bureau’s famous Form 302 report by the two agents, who collaborate to try to ensure the form’s accuracy. The presence of two agents not only makes for a more accurate summary report; it also means that if the subject later disputes the bureau’s account of what he or she said, there are two agents available to testify about the interview. (As Rich has pointed out a few times on our podcast, there are still obvious problems with this system. For example, the bureau does not give the subject a chance to review the statement to ensure its completeness and accuracy. In recent years, the FBI has entered the 21st century, or at least the 1980s, and electronically recorded more interviews.)

But the bureau’s interview practice was not followed when Sussmann met with Baker. The two are longtime friends and colleagues, having overlapped as Justice Department national-security lawyers for many years. When Sussmann texted his friend “Jim” on the latter’s personal cellphone on the night of Sunday, September 18, 2016, to ask to come meet about a sensitive matter, Baker invited him to come to FBI headquarters the next day. They met one-on-one for about 20 minutes, without anyone recording their conversation in any form.

Vulnerabilities in Durham’s case were apparent. For one thing, the indictment relies heavily on the fact that, immediately after the meeting, Baker met with a top FBI counterintelligence agent (Bill Priestap) and related that Sussmann had insisted he had not come to the FBI on behalf of a client. It was unusual for this kind of corroboration to be pled in an indictment; you usually save that for the trial. Its inclusion in the charging document signaled weakness: Durham knew Baker’s recollection of exactly what had been said at a short meeting five years earlier was going to be aggressively challenged by Sussmann’s lawyers.

So to shore up his case, Durham would have to try to rehabilitate Baker by calling Priestap (and, it turns out, another FBI lawyer, Trisha Anderson, who also took notes of Baker’s account) to explain that right after speaking with Sussmann, when his memory was freshest, Baker reported Sussmann’s assertion that he had not been representing a client. Veteran trial lawyers were left to wonder how much of that testimony the judge would permit.

But then, as I detailed in a December 2021 column, it emerged that Baker had given slightly different accounts at different times when reporting on and testifying about his meeting with Sussmann. In fact, he’d even referred to Sussmann as approaching the bureau on behalf of “clients” — though it was not clear that he meant clients in the sense of people who had formally retained Sussmann as an attorney.

In a false-statements case, the government has to prove that what it claims was said — the statement alleged to be materially false — was actually said. It may not be necessary to prove the exact words, but there can’t be real doubt about the substance of what was conveyed. I questioned in that December 21 piece whether Durham’s case was “collapsing.” Would Durham really be able to convince a jury that Sussmann had said what the indictment alleged? That Baker was certain about what Sussmann meant?

Sussmann’s best defense was clear: Baker got it wrong; after all, why would I lie about that when everyone in Washington knows I have represented top Democrats?

Then everything changed. In early April 2022, Durham revealed that he had the actual text that Sussmann had sent Baker on September 18, 2016. As Isaac’s report notes, the text reads as follows:

Jim — it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. Do you have availability 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. [Emphasis added.]

For those watching the case closely, this was a bombshell. The text is so damning, I said when it came to light, that it is inconceivable that Durham had it in his possession when he indicted Sussmann seven months earlier. Otherwise, the text would have been highlighted and quoted in the indictment, which it was not.

Now, Baker has cleared up the mystery in his trial testimony. When he was interviewed by prosecutors in March, Baker was reminded by Durham himself of the government’s obligation to disclose relevant information to the defense, and asked to check his records. Baker then checked electronic files stored in the cloud, found the text — apparently one among several between him and Sussmann — and surrendered the text to Durham’s prosecutors, who in turn disclosed it to Sussmann’s lawyers (to their great chagrin, no doubt).

The text changes everything. Baker’s recollection is now a tangent in the trial, rather than the make-or-break issue.

Isaac’s report shows us how this is playing out in the courtroom:

For the government, prosecutor Andrew DeFilippis also made an effort to preempt an argument expected to be made by the defense.

During an interview with the Office of the Inspector General (OIG) at the Department of Justice in 2018, Baker stated that Sussmann had “clients” who Baker believed to be cybersecurity experts.

Under questioning from DeFelippis, Baker called that statement “inaccurate” and “wrong,” and insisted that Sussmann never told him that he was representing any client. His previous use of the word “clients” during his OIG interview was a “shorthand,” according to Baker, who said that it is “usually the case” that lawyers come to the FBI on behalf of clients.”

Last December, upon the discovery of Baker’s OIG testimony, defense attorney Sean Berkowitz said Baker’s statements “directly contradict” the allegations against Sussmann.

Yeah . . . but that was before we had the text from Sussmann, undeniably in his own words, making exactly the representation that Durham has charged as a false statement. Maybe the jury will believe Baker’s explanation of what he meant by “clients.” Maybe the jury will have doubts. But as someone from the Hillary Clinton campaign once said, what difference, at this point, does it make? Now, the only thing that counts is what Sussmann said, not what Baker remembers. And we know what Sussmann said.