One Key Argument For Michael Sussmann’s Defense Has Crumbled Already

Former Hillary Clinton campaign attorney Michael Sussmann’s defenders have already been proven wrong on their claim that prosecutors will have a hard time proving Sussmann told the FBI that he was sharing Alfa Bank “intel” on his own, and not on behalf of a client.

Shortly after Special Counsel John Durham charged Sussmann with making a false statement to former FBI General Counsel James Baker when he provided Baker with data and three “white papers” purporting to establish a secret communication channel between the Trump organization and the Russia-based Alfa Bank, Sussmann’s friends, former colleagues, and political bedfellows launched a defense of the former Clinton campaign attorney.

Predictably, The Brookings Institute, which served as ground zero for the Russia collusion hoax, provided cover to Sussmann on its Lawfare blog. Chief collusion conspiracy theorist Benjamin Wittes penned a veritable defense brief. Wittes, who acknowledged in his article that “Baker is a personal friend and former colleague at Brookings and Lawfare,” attacked both Durham and the indictment.

Durham’s 27-page speaking indictment is “one of the very weakest federal criminal indictments I have ever seen in more than 25 years covering federal investigations and prosecutions,” Wittes proclaimed, asserting “the evidence that Sussmann lied at all is weak.”

“As a preliminary matter, the indictment by its terms concedes that the entire case—notwithstanding its many pages of narrative of the conduct of the Clinton campaign and its agents—hinges on the testimony of a single witness: the former FBI general counsel, Jim Baker,” Witte wrote. “This concession appears on page 18 of the indictment, which describes the Sept. 19, 2016, meeting between Sussmann and Baker at FBI Headquarters where the supposed lie happened. The indictment notably includes the fact that ‘[n]o one else attended the meeting.’”

Wittes then ticks off the prosecution’s three pieces of evidence that Sussmann told Baker he was not acting on behalf of any client, calling it “thin gruel,” with the gruel getting “a lot thinner when one looks at each of these pieces of evidence in any detail.”

First, there will be Baker’s testimony that Sussmann told Baker he was not acting on behalf of any client, Wittes notes. But Wittes claims Baker will be an unconvincing witness, because in his congressional testimony in October 2018, “Baker repeatedly disclaims specific memory of whether Sussmann identified his clients.” “It is hard for me to understand how a criminal case against Sussmann can proceed in the face of this testimony,” Wittes wrote.

Sussmann’s friend then downplays the “contemporaneous notes of Bill Priestap,” a higher up at the time in the FBI. Those notes, which Priestap penned after Baker relayed his conversation with Sussmann to his colleague, read “said not doing this for any client.” The note seems to corroborate Baker’s memory, Wittes acknowledges, before discounting it as hearsay. (Hearsay or not, the note will likely be admissible.)

Durham’s third piece of evidence concerns Sussmann supposedly repeating the lie to the CIA in January, but that “doesn’t cleanly corroborate the allegation that Sussmann lied to Baker,” Wittes concludes.

While Wittes’ Lawfare piece presented the most comprehensive defense of Sussmann, his fellow Russia collusion hoaxers also pushed the “it will be impossible to prove Sussmann lied to Baker” theme. In an op-ed for MSNBC, “Russia, Russia, Russia” queen Barbara McQuade called the case “weak on the merits,” claiming the special counsel could not prove Sussmann made the false statement.

“Sussmann maintains that he did not make the statement,” McQuade wrote, before repeating Wittes’ point that “it appears that the whole case is built on the testimony of one witness, Baker.” Like Wittes, McQuade stressed Baker will be a weak witness given his prior testimony. She also discounted Priestap’s corroborating notes as hearsay.

The Washington Post likewise critiqued the special counsel’s case, arguing that “even if the charge is legally sound, proving it will be a huge challenge.” “The alleged false statement was not written down or recorded. There were no witnesses other than the FBI attorney,” the Post wrote. And “given the nature of human language and memory, it’s almost impossible to prove beyond a reasonable doubt precisely what was said during a portion of a single conversation five years ago,” the article announced.

The New York Times also worked to counter the special counsel’s criminal case by citing Sussmann’s defense lawyers, Sean Berkowitz and Michael Bosworth. According to the Times’ piece, Sussmann’s legal team “have denied the accusation, insisting that he did not say he had no client and maintaining that the evidence against him is weak.”

The Times’ Russian-hoaxer team of Savage and Goldman continued: “The case against Mr. Sussmann turns on Mr. Baker’s recollection that Mr. Sussmann told him he was not at the meeting on behalf of any client—which Mr. Sussmann denies saying. There were no witnesses to their conversation.”

Sussmann’s lawyers went further in a statement released after the indictment, with NPR and others reporting the Latham and Watkins attorneys’ claim that the special counsel “is bringing a false statement charge based on an oral statement allegedly made five years ago to a single witness that is unrecorded and unobserved by anyone else.”

For all the ink spilled over the “you can’t prove Sussmann said he was not representing a client” defense of the former Clinton campaign attorney, 42 words dissolve that narrative: “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.”

Last week, the special counsel’s office revealed Sussmann sent that text to Baker at 7:24 p.m. on the night before the meeting at which Sussmann handed the Alfa Bank material to the then-FBI general counsel. Just like that, the thin gruel seems more like cement.

Of course, it will be for a jury to decide whether Sussmann lied to Baker and is guilty of the offense charged, but Sussmann’s text message dispatches one of the strongest defenses pushed by his cohorts in the court of public opinion, which raises an intriguing question: Why is this text only becoming known now?

It isn’t as if Durham’s team went light on the details, either in the indictment or follow-up legal filings. And from comments they made to the press, Sussmann’s attorneys seemed unaware that prosecutors possessed the text message—which would be bizarre if the special counsel’s office knew of the text before dropping the indictment. After all, the special counsel would want to show Sussmann the strongest evidence it had of the alleged crime, to push him to enter a plea deal and cooperate with prosecutors.

Together these facts suggest that neither the special counsel’s office nor Sussmann’s legal team knew this damning text existed prior to the indictment. How, then, was the text discovered?

One possible explanation is that the text was recovered from one of Baker’s two cellphones the DOJ’s Office of Inspector General had secreted from the special counsel’s office until January 2022. But those phones were “FBI cellphones,” and according to Durham’s filing, the text was sent to Baker’s personal cell phone.

So, maybe instead the special counsel’s office somehow just recently obtained access to Baker’s personal cell phone or texts sent to that phone. If so, why the delay? Was someone keeping this evidence on the sly? Or did Baker possibly forward the Sussmann text from his personal cell phone to one of his FBI cellphones, and thus the text was on the phones the OIG had long possessed? If so, that raises even more questions.

The mysterious case of the appearing text will have to wait for another day. For now, though, we know that, contrary to the Russia-collusion hoaxers’ claim, the special counsel has ample evidence that Sussmann told Baker he was not working on behalf of a client, striking down one of the two main defenses touted by Sussmann’s backers. With a decision by the court on Sussmann’s motion to dismiss imminent, the second attack of the indictment—that the lie was not material—will likely crumble soon too.

Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today.

Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time.

As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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