Michael Sussmann is facing a trail next month for one count of lying to the FBI. Specifically, Durham’s team claims that Sussmann brought data about an alleged connection between Trump and Alfa Bank to James A. Baker at the FBI in 2016. Sussmann (allegedly) claimed he was handing over the material as a citizen, not on behalf of a client. Only that wasn’t true because Sussmann was working on behalf of the Clinton campaign and even billed the campaign for the meeting with the FBI.
Sussmann’s attorneys have denied that he lied to the FBI but starting in February they also made an alternative argument. Even if Sussmann had lied to the FBI, that lie would have been “ancillary” and therefore immaterial:
“It has long been a crime to make a false statement to the government. But the law criminalizes only false statements that are material—false statements that matter because they can actually affect a specific decision of the government,” the lawyers wrote, adding that, by contrast, false statements “about ancillary matters” are “immaterial and cannot give rise to criminal liability.”
Yesterday we may have learned why Sussmann’s lawyers took this particular approach. In a filing with the court, which the Washington Examiner published here, Durham’s team revealed that they have a text message Sussmann sent to James A. Baker at the FBI on the night before they met. Here’s a portion of the filing.
The defendant is charged in a one-count indictment with making a materially false statement to an FBI official, in violation of Title 18, United States Code, Section 1001. As set forth in the Indictment, on September 19, 2016 – less than two months before the 2016 U.S. Presidential election – the defendant, a lawyer at a large international law firm (“Law Firm-1”) that was then serving as counsel to the Clinton Campaign, met with the FBI General Counsel at FBI Headquarters in Washington, D.C. The defendant provided the FBI General Counsel with purported data and “white papers” that allegedly demonstrated a covert communications channel between the Trump Organization and a Russia-based bank (“Russian Bank-1”). The Indictment alleges that the defendant lied in that meeting, falsely stating to the General Counsel that he was not providing the allegations to the FBI on behalf of any client. In fact, the defendant had assembled and conveyed the allegations to the FBI on behalf of at least two specific clients, including (i) a technology executive (“Tech Executive-1”) at a U.S.-based Internet company (“Internet Company-1”), and (ii) the Clinton Campaign.
Indeed, on September 18, 2016 at 7:24 p.m., i.e., the night before the defendant met with the General Counsel, the defendant conveyed the same lie in writing and sent the following text message to the General Counsel’s personal cellphone:
Jim — It’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. Do you have availibilty 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)
The FBI General Counsel responded: “Ok. I will find a time. What might work for you?”
That seems pretty clear cut. And the filing goes on to say that Sussmann did the same thing when he took an updated version of the same data to another government agency a few months later:
In his meeting with Agency-2 employees, the defendant also made a substantially similar false statement as he had made to the FBI General Counsel. In particular, the defendant asserted that he was not representing a particular client in conveying the above allegations. In truth and in fact, the defendant was continuing to represent at least Tech Executive-1– a fact the defendant subsequently acknowledged under oath in December 2017 testimony before Congress (without identifying the client by name).
After Baker met with Sussmann, he spoke to the Assistant Director for Counterintelligence and with a Deputy General Counsel. Both of them took notes on what Baker told them and both sets of notes mention that Sussmann had claimed he was not working for a client.
In communicating with these officials, the General Counsel [Baker] relayed the details of his meeting with the defendant [Sussmann], including defendant’s specific representation that he was not there on behalf of any client. Both the Assistant Director and the Deputy General Counsel took contemporaneous notes. The Assistant Director wrote the following in his FBI notebook, which stated, among other things, “said not doing this for any client”…
Similarly, the Deputy General Counsel took the following notes, which stated, in part, “No specific client but group of cyber academics talked w/ him about research”
The filing argues that both of these documents should be admitted to rebut the claim they expect Sussmann’s lawyers to make at trial, i.e. that James A. Baker has a faulty memory of the meeting.
In addition, Durham is seeking to have emails sent between the team of researchers putting together the data which was eventually provided to the FBI and Rodney Joffe aka Tech Executive 1. Those emails seem to suggest they weren’t terribly concerned if the claims were true.
Overall, CNN reports the new filing by Durham suggests he’s not just going after the narrow question of whether Sussmann lied to the FBI. He may also be planning to call Christopher Steele as a witness:
The new filings on Monday suggest that instead of narrowly focusing on Sussmann’s alleged lie and the specific meeting where it allegedly occurred, Durham plans to describe at the trial how the Clinton campaign tried to dig up dirt about then-candidate Donald Trump and his ties to Russia.
Durham’s prosecutors said in their own filing that they expect to bring up at trial an old Steele deposition about a meeting he had with Sussmann where they discussed the Trump-Russia cyber claims. Taken together, the filings indicate Durham may try to call Steele as a witness…
If Durham is allowed to bring up the dossier at trial, it would put a spotlight on the secretive efforts by Clinton allies to push the collusion narrative, which has become a hotly debated political topic. Trump denies wrongdoing and says the Democrats faked his ties to Russia, while many Democrats still believe Trump’s dealings with Russia are a grave national security threat.
Assuming the judge doesn’t dismiss the case, we’ll see where this goes next month. Already it looks like pretty solid evidence that Sussmann lied about his client to the FBI.