In case you missed the news coverage that went by in the blink of an eye, an attorney named Michael A. Sussmann was indicted recently by special prosecutor John Durham. While most people have never heard of Michael Sussmann, the case against him is an important one: not only for the defendant who stands accused of a serious crime, but also for the nation, which deserves to know the truth about the institutional integrity of the Federal Bureau of Investigation while under the then-leadership of James Comey.
There is no doubt that the actions of a cast of government actors in recent years, such as Peter Strzok, James Comey, and Andrew McCabe have damaged the reputation of the FBI in the eyes of many Americans, who view that agency as a political arm of the 21st Century Democratic party. This recent indictment by Durham, though directed at a private-sector attorney, may cast some sunshine into the taxpayer-funded law enforcement agency and help to elicit the truth about the Comey administration’s operations in the months leading up to the 2016 Presidential election.
So, who exactly is the accused, Michael A. Sussmann? Sussmann is an attorney who was, but is no longer, employed by the law firm of Perkins Coie, as he has reportedly resigned. (See, Perkins Coie partner resigns from firm after he is charged by special counsel, by Debra Cassens Weiss, September 17, 2021, abajournal.com.) As such, Sussmann’s biography no longer appears on the Perkins Coie website. However, according to a letter to the editor published on October 18, 2018, in the Opinion/Letters section of the Wall Street Journal entitled, “Our Michael Sussmann Is an Honorable Man,” John Devaney of Perkins Coie described Mr. Sussmann as “a nationally recognized privacy, cybersecurity and national-security lawyer.”
The indictment against Sussmann is a single count of lying to the Federal Bureau of Investigation. Mr. Sussmann has pled not guilty to the charge against him and he is, of course, presumed innocent under the law. The charge itself against Sussmann is not complicated. He is accused of lying to the FBI’s General Counsel during a meeting on September 19, 2016 concerning the capacity in which he was providing allegations to the FBI concerning the Trump Organization. Sussmann is accused of falsely stating to the FBI’s General Counsel that he was not doing his work on the allegations “for any client.” During that meeting, which was allegedly initiated by Sussmann, the prosecution charges that Sussmann was actually acting on behalf of and in coordination with two clients – a technology executive and the Hillary Clinton Presidential Campaign – in assembling and conveying the allegations against the Trump Organization.
Sussmann’s meeting with the FBI’s General Counsel related to a purported covert channel of communication between the Trump Organization and a Russian bank. According to the indictment, the information provided by Sussmann to the FBI’s General Counsel, which included three “white papers” and data files, prompted a criminal investigation by the FBI into the Trump Organization only weeks before the November 2016 presidential election. As the indictment reflects, ultimately the FBI concluded that there was insufficient evidence to demonstrate that there was any secret communication channel between the Trump Organization and the Russian bank.
Criminal proceedings serve a truth-seeking function. Against that backdrop, this prosecution is as much a condemnation of the role of the press in its reporting in the days leading up to the Trump-Clinton election, as it is a criminal indictment against an individual. In fact, the first introductory paragraph of the Indictment points out that approximately one week prior to the 2016 Presidential election, that “multiple media outlets reported that U.S. government authorities had received and were investigating allegations concerning a purported secret channel of communications between the Trump Organization, owned by Donald J. Trump, and a particular Russian Bank [ ].”
This aspect of the circumstances surrounding this case bears mention: leaks to the press regarding federal investigations negatively impact the integrity of the criminal justice system and, when involving political candidates, can unduly influence an electorate. But folks who engage in the leaking to the press probably don’t think twice about sacrificing the integrity of the justice system in order to gain an advantage in a presidential election.
As for the sole count against Mr. Sussmann, it appears that, should the case proceed to trial, the prosecution will be largely predicated on the testimony of the FBI’s then-General Counsel James A. Baker. And, so who exactly is the witness, James A. Baker? According to the transcript of Baker’s interview by the House Committee on Judiciary held jointly with the House Committee on Government Reform and Oversight in October of 2018, Baker was appointed to his position of General Counsel by then-Director James Comey and he served in that position from January of 2014 to January of 2018. According to the aforementioned transcript, Comey had been Baker’s boss twice prior to Baker’s appointment as General Counsel of the FBI – once in a public-sector job and once in a private-sector job. Baker referred to Comey as a “former boss”, a “colleague” and a “friend.” (Transcript of Baker’s interview, October 3, 2018, at Page 16). Baker knew Michael Sussmann before the September 2016 meeting, having worked with him in the criminal division of the Department of Justice in the past. (Transcript at Page 52).
Since no one else attended the meeting in September of 2016 between Baker and Sussmann, this may ultimately be a case of one attorney’s recollection against another’s recollection regarding a conversation that took place a half a decade ago. If so, meeting its burden of proof may be challenging for the Government, particularly judging by the transcript of Mr. Baker’s interview before the joint committee in October of 2018. According to the transcript, the following question was posed to Baker by the chief national security counsel for the House Committee on Government Reform and Oversight: “So when Mr. Sussman [sic] came to you to provide some evidence, you were not specifically aware that he was representing the DNC or the Hillary Clinton Campaign at the time?” Baker’s response to that question was: “I don’t recall, I don’t recall him specifically saying that at that time.” (Transcript of Baker’s interview, October 3, 2018, at page 53).
In any event, a number of questions arise concerning the circumstances of the meeting between Sussmann and Baker and the FBI’s actions that ensued as a result of that meeting. While the indictment alleges that Sussmann failed to disclose that he was there on behalf of a client, did the FBI’s General Counsel have any intellectual curiosity or suspicion that Sussmann may have been representing the Hillary Clinton campaign or some other client? With the serious nature of the allegations that were being presented to Baker concerning a presidential candidate, wouldn’t it have been prudent for Baker to direct an attorney under his chain of command, such as a deputy general counsel, to join in on the meeting? Before embarking on a criminal investigation of the Trump Organization, at a time when early voting in some states had already commenced, what efforts, if any, did the premier law enforcement agency in the nation take to determine whether Sussmann was merely a concerned citizen presenting them with allegations surrounding the Trump Organization? As a preliminary matter, wouldn’t it have been important for the FBI to assess the integrity of the evidence conveyed to it by determining whether the source had any potential bias?
Regardless of the outcome of this particular criminal prosecution against a private-sector attorney, the public deserves to know what the taxpayer-funded FBI employees under the then-leadership of James Comey knew and when they knew it.
The truth doesn’t always get revealed quickly and it sometimes comes out in bits and pieces, but, over time, it always finds a way of coming out. Toward this end, it is imperative that Durham’s truth-seeking work continues.