RUTHFULLY YOURS

Let’s give the Clintons their due: They’ve always had a sense of humor.

They’d have to. It would be impossible to survive without one given the messes they’ve gotten themselves into, and out of, lo these 30 years. And now, with yet another special counsel hovering, and apparently close to concluding that the Hillary Clinton campaign pulled off one of the great political dirty tricks of all time, it’s like we’re right back in the Nineties, wondering what the definition of is is.

The is of the moment is the attorney–client privilege. It had to happen eventually. The Clintons are Yale-educated lawyers, with Hillary having made her bones as a young Hill staffer in the Democrats’ no-holds-barred Watergate investigation.

As masters of creating and surviving scandal, the Clintons’ MO has always been a rule of lawlessness amid a ubiquity of attorneys. Mafia dons do this too: Make sure to have Family counsel at all the meetings where the nasty stuff gets planned, so when the FBI comes snooping around, you can start blathering about the Sixth Amendment and the sacred right to $1,000/hour confidentiality. Indeed, when the FBI did come calling about her home-brew email-server escapade, Mrs. Clinton even managed to talk the bureau’s complaisant higher-ups into letting her bring her suspected co-conspirators along for her interview by the case agents — after all, they were lawyers!

Of course, it’s hard to fault the FBI too much for such a basic violation of investigative protocols: By the time the former secretary of state was interviewed, the Obama Justice Department had stymied the bureau’s attempts to ask questions of Clinton’s juris-doctor underlings and inspect their computers. The attorney–client privilege was the defense . . . and, with Clinton-friendly law-enforcers running the show, it worked.

There is delicious irony in all this as it pertains to Special Counsel John Durham’s probe.

Durham and his staff are preparing to try heavyweight Democratic lawyer Michael Sussmann in about three weeks. Plainly, their focus is broader than just the one alleged false statement to the FBI on which Sussmann has been indicted. Durham’s charging documents and court submissions strongly intimate that the Hillary campaign is the fons et origo of the Trump/Russia “collusion” farce that dizzied the country and hamstrung a presidency for two years.

The theory is straightforward: The Clinton campaign, working through its lawyers at Perkins Coie and its “oppo” gourmands at Fusion GPS, ginned up a smear that the Republican presidential nominee and his campaign were Vladimir Putin’s own little KGB cell attempting to take control of the United States government. The Clinton campaign not only peddled this narrative to the media-Democrat complex, which dutifully hyped it; Team Clinton also had operatives, such as Sussmann (a former Justice Department cybersecurity specialist and man-about-Washington), exploit their deep government ties to project the collusion story onto the radar of national-security agencies. This enabled the campaign to claim that concerns about Trump’s nefarious Russia relationship had blossomed into a criminal investigation.

When people are doing something sneaky and potentially illegal — and we should note that defrauding the government is a felony — they often take pains to conceal their connection to it. In miniature, that is what the Sussmann prosecution is about. His alleged lie was the claim that he was bringing derogatory Trump/Russia information to the government not on behalf of any client — just as a good, patriotic citizen and former U.S. national-security official who was trying to help the FBI protect Americans. In reality, Durham alleges, Sussmann was working for the Clinton campaign and Rodney Joffe, a pro-Clinton tech executive who was hoping to score a cybersecurity gig in the anticipated Hillary administration.

But let’s widen the aperture, beyond Sussmann. The interesting question here is not whether Sussmann fibbed to the bureau. It is: Why did the Clinton campaign and Joffe think it necessary to conceal their roles in the scheme?

What does that have to do with the Clintons’ sense of humor?

Well, as is standard before a criminal trial, the parties are now arguing about what evidence the jury will be permitted to hear. On that score, Durham has subpoenaed lots of information from the Clinton campaign, but it has declined to produce it, citing — all together now! — the attorney–client privilege. That’s an amusing touch in a case where the central allegation is Sussmann’s insistence that he was not acting as an attorney for the Clinton campaign.

While Team Clinton’s gambit is at Durham’s expense, the prosecutor is trying to make sure the joke is on Sussmann. For purposes of the trial, Durham has told the court, he may not need the underlying information he has subpoenaed; he just wants to show the jury that Sussmann’s collaborators have tried to withhold it based on the exact attorney–client relationship that Sussmann told the FBI he didn’t have with them.

It’s a tight spot for Sussmann: Unless the court finds some reason to rule in his favor, his only way around this evidence would be to stipulate that he was working for the Clinton campaign when he told the FBI he wasn’t working for the Clinton campaign. That would make for an awfully quick false-statements trial.

The more intriguing thing is the continuing effort by the Clinton camp to conceal relevant communications — hundreds of which, Durham reports, do not even involve a lawyer, much less pertain to confidential legal advice or preparation for litigation. Why the secrecy? If they really believed Trump was Putin’s puppet, you’d think they’d be anxious for people to see those discussions. They could then say they were just trying to help the FBI with the Alfa Bank story and the Steele dossier — you know, like Sussmann was just trying to help the FBI.

A last thing to think about. Sussmann’s defense counsel say they would like to call Joffe as a witness. But Joffe won’t testify unless he has immunity, and Durham has represented to the court that he will not immunize Joffe because Joffe remains the subject of a criminal investigation.

That should grab the attention of those — including me — who believed we were nearing the end of Durham’s inquiry. I figured he’d try Sussmann, try Igor Danchenko (the other defendant he has indicted for false statements), and then write his final report. That is, Durham would be scathing in describing the Clinton campaign’s sleazy conduct for historical purposes, but there would be no more indictments. It may still go that way, but now I wonder.

You have to keep reminding yourself that Sussmann is charged only with making a false statement, and Joffe isn’t charged at all. This is not a fraud-on-the-government prosecution. At least not yet.

Durham also had some interesting things to say to the court about the Internet/phone data Sussmann brought to the FBI in September 2016, and to the CIA in February 2017. As has been reported extensively in Trump-friendly media, the CIA thoroughly examined the information — which was curated by Joffe, and which Sussmann worked on (billing the Clinton campaign) — and found it to be bogus. The suggestion is that it was fabricated with the intention to deceive. As I noted earlier this week, what has not gotten as much attention is Durham’s caveats about the CIA’s conclusions.

Durham reports that the FBI did not draw a conclusion about whether the data was bogus. Clearly, the bureau did not think much of the data since it dropped the Alfa Bank investigation — i.e., the inquiry into whether Trump and the Kremlin were using Russia’s Alfa Bank as a communications back channel. This only means, however, that the FBI decided that the Alfa Bank claims lacked evidentiary support, not that the evidence offered to support the claims was fraudulently concocted. The FBI didn’t go there.

Ah, but Durham is going there. He just hasn’t yet decided what there is there. Let’s quote from his April 15 court submission:

While the FBI did not reach an ultimate conclusion regarding the data’s accuracy or whether it might have been in whole or in part genuine, spoofed, altered, or fabricated, [the CIA] concluded in early 2017 that the [Alfa Bank] data and Russian Phone Provider-1 data [i.e., “YotaPhone” communications data also mined by Joffe and proffered by Sussmann] was not “technically plausible,” did not “withstand technical scrutiny,” “contained gaps,” “conflicted with [itself],” and was “user created and not machine/tool generated.” The Special Counsel’s Office has not reached a definitive conclusion in this regard.

That last sentence — emphasis in the original — is the kicker.

Let’s connect some dots. Joffe is still the subject of a criminal investigation, ergo Durham is still investigating. That means additional indictments are still a possibility: The prosecutor is not down to report-writing yet. A big part of what Durham is still investigating is whether the Trump/Russia information from Sussmann, Joffe, and the Clinton campaign was not only weak evidence but a willful effort to hoodwink the government into conducting criminal and foreign-counterintelligence investigations of Trump. This comes against the backdrop of the Steele dossier, the preposterous set of faux intelligence reports also produced by the Clinton campaign (via Perkins Coie, which retained Fusion GPS, which retained Christopher Steele, who recruited the aforementioned Danchenko). The campaign operatives pressed the dossier on the FBI (which pressed it on the FISA Court), as well as on the State Department — and the CIA, again, is also said to have regarded the Trump/Russia allegations as nonsense. And finally, Durham has already concluded that all roads lead to the Clinton campaign. That could spell big problems for Mrs. Clinton and her minions if Durham ultimately concludes that the Trump/Russia information was proffered with intent to deceive the government.

Durham’s investigation is not over. After three years, it may be getting very interesting.