Schadenfreude was inevitable in the dexterosphere when the news broke that a lawyer for Hillary Clinton’s 2016 Presidential campaign had been indicted for making a false statement to the FBI. Robert Mueller’s years-long, ultimately futile investigation of the Trump campaign garnered “successes” from similar indictments for process crimes: Gen. Michael Flynn for misstating the subject of a telephone call, George Papadopoulos for saying that an agent provocateur contacted him before, rather than after, he joined a Trump advisory panel.
The charge against Michael Sussmann, who resigned his partnership at Democratic political law firm Perkins Coie immediately after being indicted, is that, when he presented the FBI with allegedly incriminating evidence about Donald Trump’s supposed connections to the Russian government, he denied that he was acting on behalf of his then-client, the Clinton election campaign.
On its face, the indictment harvests small potatoes, much like those of Messrs. Flynn and Papadopoulos. Assuming that General Flynn lied about, rather than simply misremembered, the phone call in question, what he said didn’t mislead the FBI, which had a recording of the call. It’s similarly hard to see how Mr. Papadopoulos’s deception (if, again, it wasn’t just a failure of memory) could have seriously affected the investigation of his alleged knowledge of Russian kompromat on Hillary Clinton.
But the indictment contains more than a bare statement of the offense; that appears as one paragraph on page 27. The preceding 26 pages trace the creation by the Clinton campaign, its law firm and an unnamed executive of a “U.S. Internet company” (dubbed “Tech Executive-1”) of bogus evidence that the Trump campaign maintained a secret communications channel with Alfa Bank, widely reputed to be run by cronies of Vladimir Putin. The claim was trumpeted by the media in the week before the election. Hillary Clinton’s twitter feed featured “Four things you need to know about the Trump Organization’s secret server to communicate with Russian Alfa Bank”.
The story didn’t last long. It took almost no time at all for people knowledgeable in the ways of Internet traffic to debunk it. According to the indictment, Tech Executive-1 himself concluded that the connection with Alfa Bank was “a red herring”. (See ¶23j on page 13 of the indictment.) Not all dirty tricks succeed in soiling their targets. This one was such a failure that Special Counsel Mueller didn’t even bother to look into it when he delved into Donald Trump’s purported collusion with the Russian government.
Andrew McCarthy has explored the implications of the larger context adumbrated in the indictment, which “is much more interesting than the single false-statement charge against Sussmann”.
In a nutshell, then, people closely connected to the Clinton campaign use privileged access to nonpublic information for political purposes. They concoct it into a political narrative that they know is baseless but can be convincingly spun to suggest Trump is in cahoots with Putin. They then simultaneously peddle that story line to the media and the FBI – the latter of which opens an investigation of Trump because the Clinton team, in this instance Sussmann, misrepresents its intentions. Sussmann was supposedly bringing this alarming “evidence” to the FBI not for political purposes but because he and his associates were well-meaning citizens concerned about national security. Naturally in this cozy world, Sussmann is a former Department of Justice cybersecurity official who traded on his long-standing professional relationship with [James] Baker, the Bureau’s lawyer.
The indictment details that researchers at Tech Executive-1’s companies were very uncomfortable being tasked to run extensive queries about Trump and his campaign in their databases, but they did it because Tech Executive-1 was a powerful person. The researchers also highlighted significant weaknesses in the Trump-Russia narrative that they were being asked to weave, to the point that even Tech Executive-1 acknowledged it was a “red herring.” But because the objective was to craft a political theme that would damage Trump, rather than to prove an actual national-security peril, this information was kept from the government.
Maybe this strikes you as ancient, or at best medieval, history. Our country has more pressing concerns now than the malfeasance of Hillary Clinton and her minions five years ago. That is a rational attitude, although it perhaps gives too little weight to the likelihood that leaving past misconduct unrequited reduces the disincentives for future misconduct. It also isn’t the attitude of much of the Left, for which scotching the notion that Donald Trump was a victim rather than a perpetrator of electoral wrongdoing remains an imperative.
It was no surprise, then, that Law360, a legal news aggregator with a distinct left-of-center slant, accompanied its report on the Sussmann indictment with a dismissive evaluation of the strength of the case, “Evidence Ex-Perkins Coie Atty Lied ‘Pretty Weak,’ Experts Say”. The experts whom Law360 consulted rested their critique largely on the absence of a recording or transcript of the key conversation between the accused and the FBI’s general counsel. That’s a strange objection for “experts” to raise. As we all learned during the protracted “Russiagate” investigation, the FBI generally doesn’t record or transcribe its interviews. The accuracy of the documentation of the interview that led to General Flynn’s indictment was, indeed, a matter of public controversy. Moreover, even if the FBI did record interviews, Mr. Sussmann wasn’t an interviewee; he came to the FBI’s general counsel, a long-time acquaintance, with what he characterized as damning evidence. Is that a situation in which somebody would turn a recorder on?
For a better-founded presentation of the argument against the indictment, one may turn to Benjamin Wittes, editor-in-chief of the Lawfare web site and a vehement Never-Trumper. There’s nothing wrong with disliking Donald J. Trump, but there’s nothing right about assuming that all of his opponents are innocent babes in the wood.
Mr. Wittes’s characterization of the prosecution of Mr. Sussmann as “weird” rests primarily on the fact that his alleged falsehood was a minor part of the scheme outlined in the indictment and may be difficult to prove beyond a reasonable doubt. On the latter point, he concedes that the FBI’s general counsel, the only witness to the conversation between himself and Mr. Sussmann, almost certainly gave direct, inculpating testimony to the special counsel’s grand jury but observes that he has made other statements that may expose him to stiff cross-examination. He also agrees that the story summarized in the indictment –
is, indeed, a sleazy one, in which a group of private investigators, computer security researchers, tech executives and Clinton campaign lawyers access nonpublic data to try to make a colorable case that the Alfa Bank connection represented something nefarious. They put together some white papers on the subject, displaying a pretty casual relationship with the truth along the way, and they dangled those documents in front of the press and law enforcement.
But he immediately proceeds to minimize the importance of that conduct:
It’s not a pretty picture, but it’s pretty typical of opposition research efforts in high-stakes campaigns. The sleaziness and lack of regard for truth is a good reason to be skeptical and careful about such efforts when they inevitably emerge in public during a campaign, but it’s not especially surprising either. It’s also a good reason for the FBI to vet carefully allegations that show up at its door, rather than immediately accept them as true.
Omitted from Mr. Wittes’s account is one rather pertinent fact: If the indictment is accurate, Mr. Sussmann very likely (though perhaps not provably) knew that the “evidence” he was putting in front of the FBI was dubious. His claim that he wasn’t acting on behalf of a client would have been designed to lull suspicion, as his firm’s representation of the Clinton campaign was well known. He wanted the Bureau to believe that the “white papers” that he proffered were the products of disinterested research by experts, not a political concoction. Mr. Wittes, by the way, can’t quite let go of the idea that they had some substance to them. Here is his description:
For those who need a refresher, the basic issue was that some computer researchers noted what the Senate Intelligence Committee later described as “unusual internet activity connecting two servers registered to Alfa Bank, a Russian financial institution, with an email domain associated with the Trump Organization.” The researchers’ hypothesis was that this activity might suggest a secret line of communication between the bank and Trumpworld.
That’s quite far removed from what the indictment relates: that the Tech Executive-1 instructed employees of his company –
to search broadly through Internet data for any information about Trump’s potential ties to Russia. In connection with this tasking, and as alleged in further detail below, Tech Executive-1’s goal was to support an “inference” or “narrative” regarding Trump that would please certain “VIPs.” [¶23, p. 10]
Unhappily for the plotters, the Alfa Bank tale was far less credible than they supposed and did Mrs. Clinton’s candidacy no good. It was discredited almost as soon as it became public. Mr. Wittes takes its flimsiness as proof that Mr. Sussmann’s alleged lie about its provenance was immaterial.
Consider that if Hillary Clinton [had] stood beneath a “Stronger Together” banner and given a press conference announcing the contents of the material that Sussmann delivered, and if Sussmann had then transmitted that material to the FBI on Hillary Clinton campaign letterhead, the FBI still would have had to investigate the matter – the FBI having no more policy against accepting information from political campaigns than from drug dealers, mob bosses and terrorists. It still would have run down the lead, and it still would have found the Alfa Bank allegations to be without merit – just as it did, in fact.
By that standard, lying about the origins of the “white papers” made no difference, because their falsity was so patent that the FBI couldn’t have been fooled. Would Mr. Wittes then say that only clever lies are material to FBI investigations? That is his implication. Perhaps it’s a proposition that will convince a judge and jury, though the defense of “not guilty by reason of incompetence” may be embarrassing to present.
Mr. Wittes’s skeptical view of the Sussmann indictment is embedded within a larger skepticism. He doesn’t believe that what the Clinton campaign did in 2016 was anything worse than “digging dirt on political opponents and trying to interest law enforcement in that dirt”, just “the ugly normal of political campaigns”. He insists “that the Russia investigation in the main did not turn on these efforts or flow from them”, his primary evidence being that the indictments secured by the Mueller investigation were unrelated to the accusations of Trump-Russia collusion that the Clinton apparat spread so sedulously. That is true enough. As the Mueller team reluctantly concluded, there wasn’t any collusion. It was all a phantasm. Hence, any indictments necessarily related to process crimes or matters unrelated to the investigation’s purpose, such as Paul Manafort’s financial misdeeds.
Does that mean that the Clinton-crafted fantasies were no more significant than Dick Tuck’s pranks against Richard Nixon’s campaigns? Well, without them, is it at all likely that there would have been a Mueller investigation? Would the collusion narrative have gone anywhere if it had rested solely on George Papadopoulos’s tipsy assertion that he knew that Russia “had dirt” on Hillary Clinton?
Further, the Alfa Bank invention and the far more significant Steele Dossier, which the Mueller investigation examined in detail, weren’t mere dirt that candidate Clinton’s supporters had “dug up”. They were dirt that the campaign created and persuaded friendly connections in law enforcement agencies to use as the basis for investigations whose existence could then be leaked to the media. And after the campaign was over, the same hoaxes hampered the Trump Administration for years.
Mr. Wittes agrees that “one cannot peddle information one knows to be false to the FBI without violating the law” and notes comfortingly that Mr. Sussmann isn’t charged with that. It’s clear from the indictment, though, that some of the campaign team knew that the Alfa Bank story wouldn’t hold up under scrutiny. Who they were we haven’t been told. The Sussmann indictment was presented at the last minute before the statute of limitations on the false statement charge would have expired. It is a fair guess that Special Counsel Durham will have more to say in the future.