Durham's indictment of Clinton campaign lawyer Michael Sussmann offers hope that bigger fish may be reeled in

I am cautiously optimistic over the indictment handed down yesterday, accusing attorney Michael Sussman, then of Perkins Coie, representing the Hillary Clinton campaign, of lying to the FBI.  It has been very easy to despair that anything would ever come of Durham's special counsel probe, especially after the slap on the wrist delivered to Kevin Clinesmith, an FBI lawyer who lied to a court by changing evidence 180 degrees in order to facilitate a FISA warrant extension.  For an officer of the court to lie to a court ought to be a career-ending event for, without integrity, the judicial system falters.  But Clinesmith never spent a night in jail and has been readmitted to the bar.  Durham asked for six months, but Judge James Boasberg thought otherwise.

Writers whom I respect, such as Don Surber and John Hinderaker, make me look Pollyanna-ish.  Surber: "I am unexcited because none of the co-conspirators — Hillary, Obama, Comey, and the media — were indicted."  Hinderaker: "Durham harvests more small potatoes."

But what gives me hope is the possibility of conspiracy charges developing.  The statute of limitations on lying to the FBI was about to expire, so Durham's team had to indict now, even before other evidence might be ready to indict others or bring other charges against Sussman.  Retired FBI special agent Mark Wauck, who has graciously given me permission to quote his work beyond fair use limits, is optimistic:

John Durham's indictment of Michael Sussmann has been a long time coming, but it doesn't disappoint. The indictment is 27 terse pages long, dense with documentation of legal services billing and communications regarding technical internet matters. Nevertheless it sketches out the overall shape of a conspiracy in which Sussmann played a central coordinating role, but in which other top Dem operatives figure prominently. For now analysis is focusing on the document itself—it charges Sussmann with a single count of making a false statement to the federal government—but attention will quickly shift to speculation about who else is implicated.

Mark digests and summarizes the indictment (read it here):

The indictment begins with a narrative style overview. The case first came to public attention when — just one week before Election 2016 — multiple media outlets began reporting that the US government was investigating a claimed "secret channel of communications between the Trump organization ... and … "Russian Bank-1" — Alfa Bank.

In fact the FBI had initiated such an investigation — at the behest of Michael Sussmann. Sussmann, a lawyer at  a major DC law firm, Perkins Coie [Law Firm-1], had presented various files to FBI General Counsel James Baker, which purported to support the idea of this secret channel of communications. However, Sussmann had lied to Baker, denying that he was presenting the materials on behalf of "any client." In actual fact, Sussmann was acting  on behalf of:

  1. Rodney Joffe [Tech Executive-1] of Neustar [Internet Company-1]; and 
  2. The Hillary Clinton Presidential Campaign. 

In fact, Sussmann billed his meeting with Baker to the Clinton Campaign—proof positive that he had come to Baker's office on behalf of Hillary Clinton.

Mark makes the point that

had the FBI known that the allegations against Trump came directly from the Clinton Campaign, the credibility of the allegations would have been seriously undermined. The FBI would have thought and rethought the idea of even opening such an investigation. That was the reason Sussmann lied, and by doing so he gained his end: a media buzz about the FBI investigating Trump's supposed secret channel to Russia, just a week before the election.

Cui bono? ("Who benefited?")

If — a big if — evidence is developed that Hillary herself and/or top campaign officials, including the campaign's general counsel (and at the time Sussman's law partner) Marc Elias participated in planning and implementing this hoax, it opens the door to conspiracy indictments for more than just lying to the FBI.

And there may already be such evidence in hand:

What Durham's investigation determined was that Joffe — who hoped to obtain a plum cybersecurity position in a Clinton administration — had exploited his access to non-public internet data to conduct opposition research against Trump and recruited others to assist him. Joffe, Sussman, and Perkins Coie had coordinated with representatives of the Clinton Campaign to concoct the material that Sussmann presented to Baker.

According to the indictment, the role of Perkins Coie in this conspiracy was to retain the services of Fusion GPS [Investigative Firm-1] on behalf of the Clinton Campaign. This was essentially a money laundering ploy — the use of the notorious opposition research firm and its controversial principal, Glenn Simpson, would not be easily traceable to the Clinton Campaign through financial disclosures. At the same time, a partner at Perkins Coie, Marc Elias [Campaign Lawyer-1], was acting as General Counsel for the Clinton Campaign and coordinating closely with Sussmann and Fusion/Simpson in concocting the material that Sussmann eventually presented to the FBI's Baker.

At some point in July, 2016, Sussmann — alerted by Joffe — began working on what he called a "special" or "confidential project" — the Alfa Bank hoax narrative about Trump's supposed secret channel of communications with the Russian government. All his work on this project — as Durham[] documents — was billed to the Clinton Campaign, including all his communications with Elias and Joffe[.]

Now, I am far from an expert on cyber-crime, but Joffe's "access to non-public internet data" sounds a lot like hacking to me.  While somebody like Sussmann or his former partner Elias might be a "stand-up guy," as the Mafia calls them, meaning somebody who'd take a prison sentence rather than implicate his partners in crime, I am less certain that Joffe would be reluctant to name those who commissioned him (and therefore conspired) to hack internet accounts of others.

Glenn Greenwald, a lawyer, sees this as big:

There are other figures who might be caught up in conspiracy charges:

What we learn in the leadup to Sussmann's meeting with Baker implicates others in the conspiracy. At every step of the way, we find Sussmann consulting with Elias — the Clinton Campaign's top lawyer. We also find Sussmann and Elias meeting multiple times with Fusion GPS/Simpson. Although Durham doesn't include this in the indictment, we know from civil court testimony that Chris Steele was present at one of those joint meetings and that Steele claims it was Sussmann and Simpson who instructed him to concoct one of the documents that was submitted to the FBI. Clearly all of these players have reason to be concerned about Durham's future moves.

Nick Arama of RedState is also favorably impressed with the possibilities of hitting the Clinton campaign (and, I might add, its principal, Hillary) opening up:

The charge is that he lied to the FBI, telling them that he wasn't representing the Clinton 2016 campaign when he was spreading the false stories about the Trump Organization and a Russian bank. In other words, the very charge is saying that, yes, he indeed was working for the Clinton campaign in spreading these false stories — saying officially (although we've obviously always known it) that the Clinton campaign was behind it. So that declaration is in itself is big.

It's not yet time to break out the champagne, but cautious optimism seems warranted.  We've all been impatient with Durham, but as several people have pointed out, no doubt Perkins Coie fought like crazy — eating up plenty of time — to shield its billing records and other internal documents from scrutiny.  Also, COVID has slowed down the courts, so delivering an indictment a few days before the statute of limitations hits shows at least a determination to see the case through.

Graphic credit: Nick YoungsonCC BY-SA 3.0Pix4free.org.

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