Clinton Lawyer’s Achievement: Getting Donald Trump Elected President
Apparently, Michael Sussmann hoped the FBI and New York Times would whip each other into a Trump–Russia collusion frenzy. Instead, they compared notes and torpedoed Clinton’s ‘October surprise.’
Andrew C. McCarthy, National Review
I don't know if Michael Sussmann will be found guilty of making a false statement to the FBI. Special Counsel John Durham’s team has so far put in what appears to be a convincing case, and Sussmann’s defense seems incoherent. The D.C. jury was always going to be tough for Durham, however, and it’s been made tougher still by the judge’s refusal to exclude for cause jurors who were admirably candid about having contributed to Democrats, strongly supported Hillary Clinton, and opposed Donald Trump.
Whether or not Sussmann beats the rap, though, there is some poetic justice here. He and his too-clever-by-half gaggle of Hillary Clinton campaign schemers probably did manage to get Donald Trump elected president. That may be harder for Sussmann to live with than a felony conviction.
As our Isaac Schorr has related (here and here), Durham’s key witness is James Baker. Now a top lawyer for Twitter, Baker in 2016 was the FBI’s general counsel. He has a wealth of national-security-law experience, having served for years as a Justice Department lawyer working foreign counterintelligence matters. And it was that experience that brought him into contact with Michael Sussmann, who similarly worked at DOJ in cybersecurity. Over the years, the colleagues became friends and remained in frequent contact.
Baker is a smart lawyer, introspective and willing to own up to errors, but smoothly articulate. He needed all of that this week, in hours of testimony stretching across parts of three days, that became heated at times. I am not in the courtroom, which is always a disadvantage. But in the reporting, it is not hard to detect some righteous anger below Baker’s serene surface. At the end of Thursday’s combative session, when Sussmann lawyer Sean Berkowitz smarmily reminded Baker that he was under oath and should be mindful of the potential criminal consequences of perjury, it must have required all Baker’s reserves to maintain his even keel.
But he did. It had to help that Baker’s story lines up with the independent evidence. That includes, more prominently, Sussmann’s own unfiltered words, in a text to Baker. There, he insisted that, in bringing the FBI “sensitive” information (about a supposed Trump–Russia communications back channel, it turned out), “I’m coming on my own — not on behalf of a client or company — want to help the Bureau.” That is exactly the misrepresentation Durham has charged against Sussmann, who was actually representing the Clinton campaign.
By contrast, how rich of Sussmann’s counsel to posture as if Baker is the one suffering from a loose association with the truth. Their defense is that Sussmann was representing the Clinton campaign, but then somehow wasn’t when he went to see Baker . . . even though he billed the Clinton campaign for the meeting . . . a meeting for which he prepared with Clinton campaign operatives . . . who were manufacturing this tale about a Trump–Russia communications back channel . . . which just happens to be the very tale that Sussmann peddled to Baker.
Well good luck with that. It’s not the sort of story that would get very far with most people, but hey, they may love it in Washington.
Meantime, Baker’s testimony shed light on a bit of intrigue that backfired royally on the Clinton campaign and may just have helped Trump squeak past Hillary in the 2016 election.
One of the great ironies of that campaign is that, for all Trump’s complaining about the “failing” New York Times and the FBI under former director Jim Comey (of whom Baker is a longtime friend and was a top adviser), the irrefutable fact is that the Gray Lady and the bureau combined to eviscerate the Clinton campaign’s Trump–Russia collusion narrative on the eve of the election, just as that narrative might have gained traction. As Durham has demonstrated, Hillary can probably thank her lawyers for that — and herself.
Durham’s prosecutors convincingly argue that the Clinton camp was plotting an “October surprise”: explosive press revelations that the FBI suspected Trump was a clandestine agent of Russia. In autumn 2016, Sussmann pushed the “Trump–Putin secret Alfa Bank back channel” on Eric Lichtblau, then of the New York Times. Lichtblau was skeptical. To raise the ante in a way that might make the story more attractive to the Times, Sussmann sought to entice the FBI into investigating the matter, trading on his personal relationship with Baker and his credentials as a former government official who cared deeply about American national security.
Sussmann’s defense now claims he went to the FBI, not on behalf of the Clinton campaign, but as a good citizen — you know, the kind of good citizen who billed the Clinton campaign for his time meeting Baker. Sussmann did this, his lawyers now maintain, even though it was against the campaign’s interest. How so? Because Sussmann must have known the FBI would contact the Times and get Lichtblau to hold off on running the story, when what the campaign most wanted was for the story to be published.
It’s a preposterous defense (although, again, who knows, maybe it’ll fly in Gomorrah on the Potomac). All we’ve heard from the defense about Sussmann so far is what a high-minded, ethical lawyer he is. Well, as a well-compensated Clinton campaign lawyer, Sussmann had a professional duty of fealty to his client; therefore, he would never have taken a position, based on personal considerations, that would harm the campaign’s interests. Moreover, as he prepared for his meeting with the FBI, Sussmann was collaborating closely with his partner Marc Elias (the top Clinton campaign lawyer) and Fusion GPS (the information firm Elias retained to dig up Russia dirt on Trump, which helped curate the data package Sussmann gave Baker). But most obviously, Sussmann and his lawyers are employing the common ploy of concocting a defense in hindsight, based on the things they now know happened, as opposed to what Sussmann and his confederates were thinking at the time. They now know that the FBI did approach the Times, so they’re spinning a yarn about how the campaign would never have wanted that. In point of fact, at the time, it was exactly what the campaign wanted.
Sussmann knew Lichtblau had doubts about the Alfa Bank data — doubts we can assume were well-founded given this week’s FBI testimony about how nonsensical the package Sussmann presented to Baker was. (See Isaac Schorr’s report, here.) The campaign was betting that the Times would become more interested in the story if the paper knew the FBI was alarmed about a possible Trump–Putin back channel. As Baker explained in his testimony,
Sometimes reporters would want to report about the fact that the FBI was investigating something even if they did not have confidence in the underlying information. . . . They’re not reporting necessarily about the thing. They’re reporting about the FBI investigating the thing.
The Clinton campaign hedged its bets, though. While Sussmann worked on Lichtblau and the bureau, Fusion GPS — in consultation with Sussmann and Elias, and with the approval of Hillary Clinton herself — peddled the Alfa Bank tale to other reporters. They hit paydirt with progressive journalist Franklin Foer. (See Isaac’s Schorr’s report on the testimony of Fusion’s Lauren Seago.) On October 31, Foer’s blockbuster, “Was a Trump Server Communicating With Russia?”, was published by Slate. The October surprise was emerging. As the Clinton campaign had hoped, just eight days before the election, there was now a big national story alleging that Internet researchers had found a communications pipeline between the GOP candidate and the Kremlin.
Of course, Slate is not the New York Times. A Franklin Foer piece, while influential in some circles, could not have the same impact as a Times report that said the FBI was investigating Trump. That’s what Clinton campaign officials were still banking on, and with Sussmann having set the wheels in motion at the Times and the FBI, they still anticipated it would happen. Meantime, as soon as the Foer report was hot off the presses, Hillary Clinton and her adviser, Jake Sullivan, pounced, hyping the Alfa Bank story and boldly predicting that we’d soon learn that law enforcement was hounding Trump.
You may recall the tweets from Clinton and Sullivan from my late April column (excerpting reporting from the Washington Examiner’s Jerry Dunleavy):
On Halloween 2016, Clinton tweeted, “Donald Trump has a secret server. . . . It was set up to communicate privately with a Putin-tied Russian bank.”
Clinton later tweeted, “Computer scientists have apparently uncovered a covert server linking the Trump Organization to a Russian-based bank.”
She also shared a lengthy statement by then-Clinton campaign adviser, and President Joe Biden’s current national security adviser, Jake Sullivan. “This could be the most direct link yet between Donald Trump and Moscow,” Sullivan claimed. “This secret hotline may be the key to unlocking the mystery of Trump’s ties to Russia.”
Sullivan added, “We can only assume that federal authorities will now explore this direct connection between Trump and Russia.”
It was all going so well for Team Hillary . . . until the Times and the Comey FBI ruined everything.
As Baker testified this week, Sussmann told him the Times might be poised to run a story (though this was not actually the case because of Lichtblau’s skepticism). So Baker and the FBI did exactly what Sussmann and the Clinton campaign must have calculated that they’d do: They reached out to the Times. Baker, accompanied by the FBI’s then-top counterintelligence agent and its then-media relations official, held a meeting with Lichtblau and Steven Lee Myers of the Times. The bureau’s objective was to get the Times to delay publishing a story, which would allow some time for investigation, since if there was a communications back channel, there wouldn’t be the moment the Times exposed it.
Baker said Lichtblau tried to probe “how seriously we were taking this allegation and the extent to which we thought there was some type of nefarious activity between the Trump Organization and Russia.” That was to be expected, but the FBI officials may have been surprised by the reporter’s transparency. Lichtblau, Baker recalled, explained that Times reporters “weren’t quite persuaded yet about . . . whether this material showed the existence of a surreptitious communications channel.”
In essence, Sussmann and the Clinton campaign miscalculated. They assumed the FBI’s interest would be enough to induce the Times to run a story that Trump was in cahoots with the Kremlin even if reporters had serious doubts about the underlying data. Sussmann also appears to have overlooked an unavoidable aspect of relations between government investigators and the press. The Justice Department and the FBI do not like to ask the media for favors, such as delaying publication of a story, because you often have to give something to get something. Generally, the something that investigators end up giving journalists is an unusually expansive degree of insight into the matter under investigation.
And that’s what happened. To get an accommodation from the Times, the FBI agreed to a follow-up meeting, which Baker said happened a week or two later. The bureau officials acknowledged to Lichtblau that the FBI “had concluded that the materials we had obtained by Sussmann,” plus whatever the FBI did to “augment” and investigate, “did not substantiate that there was a surreptitious communications channel.”
The rest is history. On the same day that Foer’s Slate story appeared, and that Hillary Clinton and Jake Sullivan mobilized on Twitter, the Times published a report by Lichtblau and Myers — “Investigating Donald Trump, F.B.I. Sees No Clear Link to Russia” — which completely destroyed the Clinton campaign’s collusion narrative, and in particular the Alfa Bank smear.
The story, over which the Times kicked itself after Trump’s stunning upset win over Clinton, explained:
For much of the summer, the F.B.I. pursued a widening investigation into a Russian role in the American presidential campaign. Agents scrutinized advisers close to Donald J. Trump, looked for financial connections with Russian financial figures, searched for those involved in hacking the computers of Democrats, and even chased a lead — which they ultimately came to doubt — about a possible secret channel of email communication from the Trump Organization to a Russian bank.
Law enforcement officials say that none of the investigations so far have found any conclusive or direct link between Mr. Trump and the Russian government. And even the hacking into Democratic emails, F.B.I. and intelligence officials now believe, was aimed at disrupting the presidential election rather than electing Mr. Trump.
Specifically on the back-channel canard, the Times related that agents had
focused particular attention on what cyberexperts said appeared to be a mysterious computer back channel between the Trump Organization and the Alfa Bank, which is one of Russia’s biggest banks and whose owners have longstanding ties to Mr. Putin.
F.B.I. officials spent weeks examining computer data showing an odd stream of activity to a Trump Organization server and Alfa Bank. Computer logs obtained by The New York Times show that two servers at Alfa Bank sent more than 2,700 “look-up” messages — a first step for one system’s computers to talk to another — to a Trump-connected server beginning in the spring. But the F.B.I. ultimately concluded that there could be an innocuous explanation, like a marketing email or spam, for the computer contacts.
In the end, Sussmann got his New York Times story about an FBI investigation of Trump. But the October surprise was on Hillary. The lawyer seems to have thought he was a puppet master, pulling the strings of the nation’s most prominent newspaper and law-enforcement agency. But when they compared notes, it was the Clinton campaign that ended up tied in knots. Indeed, the story not only eviscerated the Trump–Russia collusion claims (at least as an election issue); it reminded readers that the FBI had reopened the Hillary Clinton emails investigation. That investigation would be re-closed a few days later, but the damage was done.
Watching Michael Sussmann’s trial defense, one senses the weaving of another tangled web. Maybe he won’t get caught in this one. But he’ll always be tethered to the last one.
ANDREW C. MCCARTHY is a senior fellow at National Review Institute, an NR contributing editor, and author of BALL OF COLLUSION: THE PLOT TO RIG AN ELECTION AND DESTROY A PRESIDENCY. @andrewcmccarthy
