RUTHFULLY YOURS

‘Whither John Durham?” That is now the pressing question for every Russiagate watcher. Admittedly, the crowd of Russiagate watchers has grown smaller since Tuesday, when a Democrat-heavy jury in Washington, D.C., acquitted Michael Sussmann, the heavyweight Democratic lawyer, of Special Counsel Durham’s charge that Sussmann had lied to the FBI.

The answer, if we are to learn the central lesson of the Sussmann case, is simple: Indict Hillary Clinton.

But . . . for what?

I’ll resist the urge to say, “There’s always something,” which would be more a commentary on the career of the former secretary of state (and cattle-futures trader, travel-office-staff director, grand-jury amnesiac, “bimbo eruptions” scourge, pardons coordinator, voice of calm, suspender of disbelief, Russian “reset” visionary, Benghazi bungler, Muslim-movie maven, charity entrepreneur, and homebrew-server savant) than a real answer.

The truth is I have no idea whether Hillary has done anything indictable this time. Orchestrating the Trump–Russia collusion farce is icky politics and maybe even civil libel. But whether it violated the criminal law in some way is a tougher question.

I do know this, though: If you really want to get to the bottom of what is scandalous about Russiagate, there could be no surer way to do it than to indict that most ruthless of cutthroat, cold-blooded politicians and sit back and enjoy the show as she sets her phalanx of gladiator–lawyers on the FBI, the Justice Department, the intelligence agencies, and the Obama White House.

Okay, I admit, this is a bit tongue-in-cheek. But still, in a perfect world — a world where there were no constitutional and ethical constraints against indictment absent a good-faith belief that the evidence of guilt is solid — there could be no better solution. Just give Hillary the incentive to do the job the special counsel’s prosecutions have avoided: Shine the light on the government’s complicity in Russiagate, instead of portraying the government as the witless victim of the Clinton campaign.

In the Sussmann trial, what we learned on that score came from the Sussmann defense, not the prosecutors. But it was limited, because Sussmann was just a bit player in Russiagate. Mrs. C is the big kahuna.

The “collusion” caper involves a scheme to smear Donald Trump, then the Republican presidential candidate, as a clandestine agent of the Kremlin. This calumny — or “narrative,” as they say in the biz — was concocted by the Clinton campaign. As dictated by the shopworn modus operandi of the Clintons, who are Yale-educated lawyers, the heavy lifting was done by the campaign’s well-paid attorneys — who would then be able to claim that any damning communications were privileged when, as tends to happen with Bill and Hill, investigators started snooping around.

The campaign’s attorneys, who were then at the Perkins Coie law firm, retained the “oppo” beavering skills of Fusion GPS, a self-styled “information” firm (though invention may be more accurate). Fusion recruited a motley crew of “researchers,” including the former-British-spy-turned-Trump-hating-fabulist Christopher Steele and his sidekick, the suspected-Russian-spy-turned-respected-Brookings-scholar Igor Danchenko.

Fusion and the lawyers also collaborated with other like-minded Trump-loathers, including a gaggle of Internet researchers, led by tech executive Rodney Joffe. They composed the mood music of the Sussmann trial: a collusion subplot about how Trump and his masters in Moscow had supposedly exploited servers at Russia’s Alfa Bank to create a covert communications back-channel. I guess that’s what supposedly enabled Trump (the puppet) to order Putin (the master) to hack Mrs. Clinton’s homebrew servers (which were no longer online or in her possession). Or something.

One of Durham’s challenges was that Sussmann, the guy he decided to indict, was among the most minor players in this farrago. The prosecutors understandably theorized that his false statement to the FBI — the claim that he wasn’t representing anyone when he brought the bureau the Clinton campaign-generated tale about a Trump–Putin back channel — took place within the context of this broader scheme. A giveaway regarding Durham’s lack of conviction about the enterprise that has led to Sussmann’s lack of a conviction is that prosecutors labeled it, almost benignly, as “the joint venture” — i.e., they pulled up short of charging it as a criminal conspiracy to defraud the government, even though they sought to admit evidence of “the joint venture” based on conspiracy principles.

More to the point, though, proving up this broad, audacious enterprise to try to nail Sussmann on a narrow, comparatively trivial false statement is like proving up the Pacific Ocean just to show a single yellowfin darting about in it. Durham had much to complain about regarding the judge, Obama appointee Christopher Cooper. But any judge would have cut these prosecutorial ambitions down to something fit for a relatively minor culprit.

So next time, Durham shouldn’t go for the minor culprit. He should go for the Pacific Ocean herself.

Again, you might ask: On what charge? To which I would respond: Who cares? The objective isn’t to convict her; it’s to get her to react to an allegation that her campaign misled the poor babes in the woods in the seventh-floor executive suites of the J. Edgar Hoover Building.

Yeah, to repeat, I know — it’s unethical to indict unless you’re confident you can convict. But then again, that’s not what we’re hearing in the Sussmann trial post mortems. Democrats are gleeful about the indictment because the acquittal damages the public perception of Durham’s probe. On the pro-Trump right, the spin is that Sussmann’s acquittal doesn’t matter because the trial turned up so much information about how the FBI was complicit in the campaign’s defamation of Trump (except for that small election-eve inconvenience, when the bureau and the New York Times colluded to blow up the Clinton campaign’s collusion narrative — never dreaming that Trump would, you know, win!).

Well, if historical accountability now outweighs all concerns about due process, how could you do better than a Hillary Clinton trial? Indictment would be just the incentive she needs to illuminate the thing that actually makes Russiagate scandalous: the placing of the government’s law-enforcement and intelligence apparatus in the service of Democrats to target their Republican nemesis.

Durham cannot shed light on this if he persists in the theory of all his prosecutions thus far, namely, that the FBI was duped by the Clinton campaign. We need Clinton to fire back, just as the Sussmann defense fired back, that the FBI knew exactly what the campaign was up to.

Sussmann, of course, was powerfully motivated. Durham’s indictment put him in the position of desperation to avoid prison and save his professional life. But Durham had a bigger problem than Sussmann: the FBI. Since he’d indicted Sussmann for lying to the bureau, Durham had to try to prove that the bureau was actually fooled by the lie. He had to somehow convince the jury that the FBI actually believed, six weeks before Election Day, that a top Democratic operative had no partisan motivation in bringing the FBI deprecatory information about the Republican nominee that just happened to line up perfectly with the Democratic narrative that Trump was in cahoots with the Kremlin. To borrow from Mrs. Clinton, Durham had to ask the court to suspend disbelief — to see the campaign and the FBI as at odds, not in lockstep.

Sussmann, by contrast, did not need to pretend that the FBI was materially misled by the “not representing any client” cover story he told with a nod and a wink. His route to defeating Durham’s case was destroying the FBI’s credibility. The campaign and the FBI were on the same page when it came to Trump, not at cross-purposes as the indictment claimed. Sussmann and his lawyers thus knew exactly where to look to find all the telltale evidence that the FBI was complicit — that it had willfully concealed Sussmann’s identity and even made false statements in its documentation of his anti-Trump data package, all to obscure the bureau’s patent awareness that it had anxiously taken partisan Democratic opposition research in order to build a political-corruption case, a national-security case, against Trump.

The eye-opening revelations in the Sussmann trial came from the defense. Indeed, it was the defense, not the prosecutors, who called to the witness stand Clinton-campaign manager Robby Mook — resulting in the bracing news that Hillary herself had authorized the peddling of the Trump–Russia narrative to the media, even though the campaign knew there was scant evidence to support it.

Durham can only get us so far. He is an earnest man and a good prosecutor. Clearly, he has not charged a conspiracy between the Clinton campaign and the FBI because he doesn’t think he can prove one up to formidable criminal-law standards. And he is righteously offended by people, such as Sussmann, who tell the FBI things that are not true. Giving the bureau false information, however, does not necessarily mean the bureau was really deceived; it may suggest, as in Sussmann’s case, a nod-and-a-wink pretext that made accepting dodgy information more palatable — that gave the image-obsessed FBI the barely plausible deniability it needed to premise an investigation on partisan opposition research.

Durham is focused on the Clinton campaign’s lies. But a political operation’s lies to the public about an opponent are not criminally actionable; only lies to government investigators are. This is Durham’s conundrum: He can either ignore such lies, which is hard for a prosecutor to do, or he can charge them, in which case he has to portray the FBI as the victim that it appears not to have been.

The part about why the FBI is not a victim is the important part of Russiagate. The leveraging of government power for partisan advantage is what makes the collusion caper scandalous. But to expose it, we may need to nudge the partisan in question.