Durham Takes Ex-Clinton Lawyer to Court: What To Know

The trial of former Hillary Clinton presidential campaign lawyer Michael Sussmann, charged with lying to the FBI about not having a client when he passed along since-debunked claims of collusion between then-candidate Donald Trump and Russia in 2016, is set to begin Monday.

The clash in federal court in Washington, D.C., represents the biggest and most public test yet for John Durham and his special counsel investigation.

Attorney General William Barr quietly appointed Durham as special counsel in October 2020 after assigning the then-U.S. attorney to investigate the origins and conduct of the Trump-Russia inquiry in May 2019. The yearslong effort, dismissed by Democrats as being “tainted” by politics and heralded by former President Trump and his allies as pulling the curtain back on the Russia “witch hunt,” appears to be affirming that many of the biggest collusion claims can be traced back to the Clinton 2016 campaign and Democratic operatives.

Beyond Sussmann, Durham has another active case against Christopher Steele’s alleged main source, Igor Danchenko, charged with five counts of making false statements to the FBI about the information he provided to the former MI6 agent for his discredited dossier. The special counsel has obtained one guilty plea from former FBI lawyer Kevin Clinesmith, who admitted he falsified a document during the bureau’s efforts to renew FISA surveillance authority against Trump campaign associate Carter Page.

Special counsel John Durham.

The Defendant

The indictment came last September. Sussmann, 57 at the time, was charged with concealing his clients — Clinton’s 2016 campaign and “Tech Executive-1,” known to be former Neustar executive Rodney Joffe — from FBI general counsel James Baker when he presented internet data that suggested a secret back channel between the Trump Organization and Russia’s Alfa-Bank during a September 2016 meeting.

Durham said Sussmann billed the FBI meeting to the Clinton campaign with the description of “work and communications regarding confidential project.”

Sussmann, who also helped the DNC handle its response to the 2016 hack, denies wrongdoing, pleaded not guilty, and unsuccessfully called upon the judge to dismiss the case, even relying in part on legal analysis by fired FBI agent Peter Strzok.

The Judge

Christopher Cooper, the U.S. district court judge presiding over the Sussmann case, has said he was “professional acquaintances” at the Justice Department with Sussmann in the 1990s. The judge’s wife has represented former FBI lawyer Lisa Page since at least 2018.

Despite these ties, Durham did not push for the judge’s recusal.

Cooper was appointed by President Barack Obama following unanimous Senate confirmation. He and his wife were married in 1999, and Merrick Garland, now attorney general, officiated their wedding.

The FBI General Counsel

James Baker, who left the FBI in 2018 and was hired as deputy general counsel at Twitter, will be called by Durham as a key witness.

Baker defended the Trump-Russia investigation and was involved in the sign-off process of at least the first flawed Foreign Intelligence Surveillance Act warrant against Page, who has denied any wrongdoing and was never charged with a crime.

Battle Over Significance

Durham argues Sussmann’s alleged lie to Baker was “material” and that it mattered. Sussmann argues he didn’t lie and, even if he did, it was immaterial.

“The defendant’s false statement to the FBI General Counsel was plainly material because it misled the General Counsel about, among other things, the critical fact that the defendant was disseminating highly explosive allegations about a then-Presidential candidate on behalf of two specific clients, one of which was the opposing Presidential campaign,” Durham said in a March filing. “The defendant’s efforts to mislead the FBI in this manner during the height of a Presidential election season plainly could have influenced the FBI’s decision-making in any number of ways.”

Sussmann’s lawyers said their client met with the FBI “to pass along information that raised national security concerns” simply “to provide a tip.” They argued Sussmann “did not make any false statement to the FBI … but in any event, the false statement alleged in the indictment is immaterial.”

Battle Over Notes

Baker met with Bill Priestap, who was assistant director of the FBI’s Counterintelligence Division, and FBI Deputy General Counsel Trisha Anderson after his Sussmann meeting in 2016. Priestap wrote that Baker said Sussmann “said not doing this for any client.” Anderson wrote in part, “No specific client.”

Sussmann also put his lie down in writing in a text message to Baker the night before their meeting in September 2016, according to Durham.

“I have something time-sensitive (and sensitive) I need to discuss,” Sussmann wrote, adding, “I’m coming on my own — not on behalf of a client or company — want to help the Bureau.”

Handwritten notes during a March 2017 meeting by Associate Deputy Attorney General Tashina Gauhar put “attorney” in quotation marks and said this person “brought to FBI on behalf of his client.” Notes by acting Assistant Attorney General Mary McCord said, “Attorney brought to Jim Baker and d/n [did not] say who client was.”

Alfa-Bank Claims Debunked

Special counsel Robert Mueller, the FBI, the CIA, and a bipartisan Senate Intelligence Committee investigation cast doubt on or rejected the Alfa-Bank claims touted by the Clinton campaign in the closing days of the 2016 election.

Mueller said in July 2019 that “my belief at this point is that it’s not true.” Mueller’s report said his team “did not establish” any criminal collusion between Trump and Russia.

DOJ Inspector General Michael Horowitz said in a December 2019 report that the FBI “concluded by early February 2017 that there were no such links.”

A bipartisan Senate Intelligence Committee report from 2020 did not find “covert communications between Alfa Bank and Trump Organization personnel.”

The judge slapped limits on Durham’s ability to cite the inaccuracy of Trump-Russia collusion claims in his prosecution.

The Russian Phone Claims

Durham said Sussmann told the CIA about the purported Russian bank connection in a February 2017 meeting in which Sussmann again was allegedly misleading about his clients. The special counsel said Sussmann also claimed that data to which he had access “demonstrated that Trump and/or his associates were using supposedly rare, Russian-made wireless phones,” called YotaPhones, “in the vicinity of the White House and other locations.” Durham found “no support for these allegations.”

The special counsel said he has evidence Sussmann’s other client, Joffe, “exploited” domain name system internet traffic at Trump Tower, Trump’s Central Park West apartment building, and the Executive Office of the President.

Durham revealed the CIA “concluded in early 2017” the Alfa-Bank and YotaPhone information was not “technically plausible” and did not “withstand technical scrutiny.”

“Tech Executive-1”

The special counsel said Joffe “exploited his access to non-public and/or proprietary Internet data” and tasked researchers to mine internet data to establish “an inference” and “narrative” tying Trump to Russia. Durham said Joffe indicated he was doing this to please certain “VIPs” on the Clinton campaign.

Joffe “enlisted the assistance of researchers” at Georgia Tech “who were receiving and analyzing large amounts of Internet data in connection with a pending federal government cybersecurity research contract” from the Defense Advanced Research Projects Agency, according to Durham.

The judge rejected the Sussmann legal team’s argument that Durham should be forced to grant Joffe immunity. A Durham prosecutor said the special counsel’s team is still “looking closely” at Joffe, including pointing to a law on major fraud against the U.S. government, specifically mentioning the DARPA contract.

Hillary Clinton Tweet

Clinton herself tweeted in the closing days of the 2016 campaign allegations that the Russian bank collaborated with Trump. She also shared a statement from Jake Sullivan, then her foreign policy adviser and now President Joe Biden’s national security adviser, on the “New Report Exposing Trump’s Secret Line of Communication to Russia.”

On Halloween 2016, Clinton tweeted, “Computer scientists have apparently uncovered a covert server linking the Trump Organization to a Russian-based bank.”

“This could be the most direct link yet between Donald Trump and Moscow,” Sullivan claimed, adding, “We can only assume that federal authorities will now explore this direct connection between Trump and Russia.” Sullivan continued pushing the Alfa-Bank claims on TV in 2017.

The judge won’t let the Clinton tweet be admitted as evidence.

Marc Elias and Clinton Campaign

Marc Elias, who last year started his own law firm, the Elias Law Group, was the Clinton campaign’s general counsel and hired the opposition research firm Fusion GPS, which hired Steele in 2016. Elias testified he was aware of Fusion’s plans to have Steele brief reporters during the 2016 contest, met with Steele in 2016, and periodically briefed the campaign about the findings from Fusion and Steele. Elias coordinated closely with his Perkins Coie colleague Sussmann on anti-Trump research in 2016.

The Joint Venture

Durham said evidence at trial would show that beginning in late July 2016, Sussmann, Joffe, and “agents of the Clinton campaign” were “assembling and disseminating the [Alfa Bank] allegations and other derogatory information about Trump and his associates to the media and the U.S. government.” The special counsel said this “joint venture” aimed to hurt Trump politically.

The judge placed limits on Durham’s joint venture evidence, saying, “The government may attempt to connect the dots between the various participants in the collection and use of the Alfa Bank data … The government must steer clear of evidence regarding the accuracy of the data.”

Durham said members of the Clinton campaign, Fusion, and Perkins played a coordinated role in pushing collusion claims.

Fusion GPS

Fusion and its Clinton campaign defenders claim the firm was hired to provide legal advice, but Durham said the evidence clearly shows they were conducting opposition research.

Durham pointed out that Fusion’s collusion claims were pushed to the media, State Department, Justice Department, and Congress, which “resulted in numerous media articles” before and after the 2016 election. Fusion also drafted one of the “white papers” Sussmann gave Baker.

Fusion co-founders Glenn Simpson and Peter Fritsch wrote in a 2019 book that they met with Elias in April 2016 and the lawyer was excited about their Russia angle.

The Clinton campaign and DNC were recently fined by the Federal Election Commission over their financial filings related to Fusion.

Earlier this month, the judge quoted an email Fritsch sent to a reporter in October 2016 in which he said to “do the f****** Alfa bank secret comms story.”

It was reported by Slate in October 2016 that researchers found “a sustained relationship between a server registered to the Trump Organization and two servers registered to an entity called Alfa Bank.” The New York Times reported, “The FBI ultimately concluded that there could be an innocuous explanation, like a marketing email or spam, for the computer contacts.”

Those reporters had been in contact with Fusion.

The judge found Fusion “had no valid basis” to withhold 22 emails it had concealed from Durham on the basis of attorney-client privilege claims by the Clinton campaign. He directed Fusion to provide Durham with the documents, but the special counsel will not be allowed to use the emails at trial. The emails were among 1,500 documents Fusion withheld from Durham.

Christopher Steele

Steele testified in a British court that Sussmann provided him with claims about Alfa-Bank’s purported ties to Russian President Vladimir Putin during a July 2016 meeting. These allegations made their way into a September 2016 memo that became part of the dossier.

The special counsel says the dossier author is at the “intersection” of Trump-Russia collusion efforts, while the Democratic lawyer calls evidence about him an unfair “lightning rod.”

Proposed Jury Questions

The selection of a D.C. jury begins Monday, with dozens of potential jurors arriving at the federal courthouse. The jury questionnaire asked them dozens of questions, including links they might have to the prosecution, defense, judge, or potential witnesses, whether they voted in 2016, and if they worked or volunteered for or contributed to any 2016 presidential campaign.

Each potential juror was also asked whether they or anyone close to them had any connection to any group “that has investigated or made inquiry into (1) Russian interference with the 2016 election, (2) the federal government’s investigation of Donald Trump’s relationship with Russia, or (3) the federal government’s investigation of Russian interference in the 2016 election.”

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