RUTHFULLY YOURS

When is a lie not a lie? When it’s a cover story.

That, in a nutshell, explains why Hillary Clinton–campaign lawyer Michael Sussmann, who quite intentionally gave the FBI false information about his motive in conveying derogatory information about Donald Trump, was nevertheless acquitted by a Washington, D.C., jury in the first trial generated by special counsel John Durham’s “Russiagate” investigation.

Durham, formerly the United States attorney for Connecticut, has been conducting his probe for over three years. In 2019, President Trump’s then newly appointed attorney general, Bill Barr, assigned him to open an inquiry into the origins of the Obama-era investigation that was premised on suspicions that Trump was a clandestine agent of Russia. Barr had preliminarily looked into the apparent bases for the FBI’s “spying” on the 2016 Republican presidential nominee, as the AG aptly put it, and found reasons to question the bureau’s basis for its assertion, in sworn applications for classified warrants from the Foreign Intelligence Surveillance Court (FISC), that it believed Russia was coordinating with the Trump campaign in cyberespionage efforts to undermine the election.

In formally appointing Durham as a special counsel, Barr gave him a measure of independence to continue his probe after Biden appointees took over the Justice Department. It is political more than legal independence. By regulation, Durham still reports to Attorney General Merrick Garland. During the 2020 campaign, however, Barr publicly stated that neither former president Obama nor former vice president Biden was a subject of the probe; Garland thus has no incentive to interfere in Durham’s work. The real upside of the special-counsel appointment is that it authorizes Durham to write a final report about his conclusions. Regardless of the outcome of any prosecutions, we should get an accounting of what happened.

Durham, 71, is a scrupulous career prosecutor. Known for being methodical but not fast, he has been hampered on Russiagate not just by the difficulties of prying sensitive information from U.S. national-security agencies and some of their foreign counterparts, but also by Covid, which for many months shut down grand juries and made traveling to meet with witnesses difficult.

Necessarily, Durham’s investigation must be nearing its conclusion. In general, the statute of limitations for federal crimes is five years. As I traced in Ball of Collusion, my 2019 book on Russiagate, there are different strands — from foreign-intelligence collection led by the CIA, and from both counterintelligence and law-enforcement operations by the FBI — that converged in the Trump–Russia investigation. Roughly speaking, the inquiries began in the months after Trump announced his candidacy in mid 2015, and they cannot have gone much further than mid 2017. That’s when President Trump fired FBI director James Comey, not long after which the FISC-authorized surveillance of former Trump-campaign adviser Carter Page was aborted. Although prosecutors can theoretically extend the limitations period to some extent (because conspirators tend to cover their tracks for a time after their criminal objectives have been achieved or abandoned), the scheme Durham is scrutinizing was essentially over about five years ago, so Durham’s window for filing new charges is closing, if not already shut.

The main thrust of Durham’s investigation is the question of why government agencies came to suspect Trump — was it due to evidence, overzealousness, or political bias? From the perspective of the criminal law, this is a gray area: In the national-security realm, intelligence and law-enforcement agencies must be given a wide berth to investigate suspicions even if they are triggered by minimal evidence (although not if triggered by no evidence, or worse, manufactured evidence). Conduct that is abusive is thus not necessarily criminal. The law favors political accountability to oust irresponsible officials over criminal prosecutions that could paralyze agencies.

On top of that, Russiagate involves the unsavory intersection of law enforcement and electoral politics. As then–attorney general Barr explained, we want to cordon off government from political campaigns: There should be a high bar of predication before the incumbent administration’s agencies investigate presidential campaigns. At the same time, because prosecutions in this sphere inevitably have political implications, they should be reserved for what Barr called “meat and potatoes” crimes: offenses that are clear-cut, not creative prosecutorial theories that smack of political payback.

Durham’s court filings in the Sussmann case manifest the ambivalence these tensions create. Prosecutors describe their Russiagate theory as “the joint venture” — eschewing the label “conspiracy.” The principal player is the Hillary Clinton campaign, which appears to have woven the Trump–Russia “collusion” smear mostly out of whole cloth. Information disclosed by intelligence agencies indicates that this was done to divert attention from former secretary of state Clinton’s email scandal (her use of a “homebrew” server system to conduct State Department business, her mishandling of classified information, and her destruction of thousands of government emails).

Operating through its lawyers, Marc Elias and his partner, Sussmann, the Clinton campaign retained and consulted with operatives who were tasked and otherwise encouraged to conduct opposition research, with an eye toward portraying Trump as Putin’s puppet. These operatives included a self-styled information firm, Fusion GPS, founded by journalists Glenn Simpson and Peter Fritsch. Fusion retained former British intelligence officer Christopher Steele, who authored the unverified, laughably error-ridden, and now-discredited “Steele dossier,” a collection of faux intelligence reports claiming that Trump — when not cavorting with prostitutes — was conspiring with Putin to hack Democrats and steal the election. To assemble his reports, Steele relied on Igor Danchenko, a former Brookings scholar whom the FBI suspected — based on actual evidence — of being a Russian asset.

In a second thread of the scheme, another Sussmann client, Rodney Joffe of the Internet-services firm Neustar, who was apparently expecting to land a top government cybersecurity job in the anticipated Hillary Clinton administration, led a gaggle of researchers in mining data (domain-name system data, which involve communications between servers and email addresses) to create what turned out to be the false impression that Trump and the Kremlin had established a communications back channel through Russia’s Alfa Bank. (In reality, the “Trump” email account that appeared to be pinging Alfa Bank servers was not administered by the Trump Organization, nor would one use one’s real name in setting up a covert channel.)

The Clinton campaign tasked its lawyers and opposition researchers to peddle these Trump–Russia story lines to the media. As startling testimony in Sussmann’s trial confirmed, this direction came from Hillary Clinton herself, in full knowledge that the collusion proof was scant. The campaign further sought to entice government agencies into investigating the Trump–Russia claims. The hope was for something like an “October surprise,” in which voters could be told that the “Putin puppet” evidence was so weighty that the FBI had the Republican nominee under the microscope.

It turns out to be one of history’s great political dirty tricks. Clinton was too flawed a candidate for it to have gotten her across the finish line, but Trump was duly slandered and his administration was hobbled by a special-counsel investigation for two years.

Was it a crime, though? Well, if the government agencies were willfully complicit, the scheme could be a fraud on the FISC, which issued warrants based on the FBI’s indefensible reliance on the Steele dossier. Or, if the proof of FBI culpability was murky, it might be possible to indict the campaign and its operatives for defrauding the government by drawing the bureau in on false pretenses. Durham, however, has not gone down either of these paths.

Perhaps in his final report we’ll get a coherent explanation of his reasoning. For now, he has dubiously settled on a theory that the FBI — despite abundant evidence of rampant anti-Trump bias and highly irregular investigative tactics (not least, rudimentary failure to corroborate deprecatory information about Trump before using it in sworn warrant applications) — was a dupe of the Clinton campaign, not a co-conspirator. Moreover, Durham has not resolved the question of whether the Clinton campaign (a) fabricated bogus information about Trump or (b) simply engaged in the sharp-elbowed politics of spinning rumors and innuendo in the worst possible light, regarding an opponent the partisans sincerely believed was deeply corrupt.

This combination of miscalculation about the FBI and indecision about the Clinton campaign undermined Durham’s prosecution of Sussmann.

Sussmann’s indictment is one of three that Durham has brought in the course of his investigation, all for lying to the FBI. The others are against Igor Danchenko, who is scheduled to be tried in the fall, and Kevin Clinesmith, an FBI lawyer who pled guilty last year to concealing from one of the agents preparing a FISA warrant the fact that Carter Page had been informing the CIA about his business contacts in Russia. Yes, we are apparently to believe that even when its own officials lie in the preparation of court submissions, the FBI is the victim, not the perp.

The Sussmann case centered on the Alfa Bank scheme. Sussmann collaborated with Joffe and Fusion GPS in packaging the data that supposedly proved the Trump–Russia back channel. The lawyer urged it on the New York Times, which remained skeptical. To make the story juicier, Sussmann brought it to the FBI, exploiting his Washington-insider status. Having been a Justice Department cybersecurity lawyer for many years, Sussmann privately texted his old friend James Baker, then the FBI’s general counsel, on Sunday night, September 18, 2016:

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.]

In reality, Sussmann was representing the Clinton campaign and Joffe when Baker invited him to FBI headquarters the next day, whereupon Sussmann delivered the Alfa Bank data. Indeed, the evidence that Sussmann was a campaign lawyer was so overwhelming that the defense conceded it — though it made the far-fetched claim that his meeting with Baker was outside the representation because it somehow didn’t serve the campaign’s interests.

So why wasn’t it an open-and-shut case of lying? Because to establish guilt, prosecutors must show that a statement is not just false but materially so. The agency must actually have been fooled, to the point of taking steps it would not otherwise have taken. Here, to the contrary, the FBI knew exactly who Sussmann was. In fact, he had represented the Democratic National Committee months earlier in blocking the FBI from access to the servers the DNC claimed were hacked by Russian operatives.

What Sussmann gave the bureau was a cover story, not a false statement. If he had said, “I am Michael Sussmann with the Clinton campaign, and we’d like you, six weeks before Election Day, to open an investigation based on this opposition research we’ve mined, to help us suggest that Hillary’s opponent is a Russian spy,” the image-obsessed FBI — which insists it is above politics, despite considerable evidence to the contrary — would have balked. So instead, Sussmann shrewdly targeted an old friend in the FBI hierarchy, which he perceived to be sympathetic to the notion that Trump was corrupt; he gave the bureau a story about coming not on behalf of the campaign but out of patriotic concern about national security — nod, wink. This gave FBI headquarters the deniability it needed to accept political dirt from a patently partisan source.

And then the FBI acted guilty. Headquarters concealed Sussmann’s identity as the source from the cybercrime investigators assigned to analyze the Alfa Bank data — which they quickly debunked, suspecting the source either was incompetent or had an agenda. The bureau preposterously lied in its investigation-opening documentation, claiming the data had come not from Sussmann but from the Justice Department. And even after an innocent explanation quickly emerged to show there was no crime, a top FBI official ordered that the Alfa Bank data be used to open a counterintelligence investigation on suspicion that Trump was secretly communicating with the Kremlin. The message out of headquarters to the line agents in Chicago was that FBI director James Comey was “fired up” about the case. The FBI wasn’t fooled; it knew Sussmann was a Democratic operative pushing information that lined up perfectly with the Democratic campaign narrative about Trump–Russia collusion.

Durham had other challenges. The Obama-appointed judge, Christopher Cooper, suppressed chunks of evidence regarding the Clinton campaign “joint venture” that Sussmann’s false statement allegedly furthered, rationalizing that Durham had not charged this venture as a crime. Cooper also declined to remove openly partisan Democrats from the jury. The impact of the smoking-gun Sunday-night text was diminished because Durham did not obtain it until after the statute of limitations had expired — meaning the case rested on Baker’s shaky memory of what was said during the Monday meeting, rather than on Sussmann’s black-and-white assertion that he was not representing a client.

All that said, Durham’s principal problem was, and remains, conceptual. What made Russiagate a scandal was not mere partisan hardball. It was the placement of awesome government investigative power in the service of partisan politics. Yet, by the special counsel’s lights, the FBI was the Clinton campaign’s victim, not its collaborator. That is hard to swallow. Democrats have already dismissed Durham’s probe as a waste of time. If his plan is to report myopically on Clinton-campaign machinations, with no further indictments and no symmetrical spotlight on collusion by Obama-era agencies, Republicans are apt to lose interest too.