Lawyer Games

A few days ago when the Michael Sussmann indictment was still ‘looming‘—on September 16, actually—we consider Durham’s Investigative Theory. I had already noted Durham’s apparent interest in Sussmann’s (and Marc Elias’) former law firm, Perkins Coie (PC), but wasn’t sure whether Durham’s interest in PC was in the firm as an entity or simply more or less coincidental to Sussmann and Elias being partners at PC. However, on September 16 I offered this consideration:

Here’s the key:

La Cosa Jostra


"[It's been suggested that Durham] has been pursuing a theory that the Clinton campaign used Perkins Coie to submit dubious information to the F.B.I. about Russia and Mr. Trump in an effort to gin up investigative activity to hurt his 2016 campaign."…

8:17 PM · Sep 15, 2021·Twitter Web App

That’s a conspiracy to submit false statements in violation of 18 USC 1001. I can only guess as to what theory of action Durham might be contemplating against Perkins Coie, but my best guess would be that it would involve the laundering of Clinton campaign payments to Fusion GPS through Perkins Coie. Obviously Perkins Coie would argue that that was done by Sussmann without the firm’s approval, while Durham might respond along the lines that the firm had some type of constructive knowledge of what was going on--through their internal auditing of accounts--and looked the other way. That’s a sketch of what might be going on here. It also explains Sussmann’s departure from the firm.

Beyond that, however, the really important point being made by the NYT is that Durham’s investigative theory is that the conspiracy to submit false statements to the FBI (the Alfa Bank hoax) was conducted under the direction of the Clinton campaign. Ultimate responsibility for the actions of the Clinton campaign would rest with Hillary Clinton.

Now, please note—with regard to what follows—that in the NYT quote above reference is made to “outside lawyers for [PC]” arguing that whatever Durham was looking at “was insufficient for any legal action.” 

Last night shipwreckedcrew offered up several tweets that bear directly on these matters. Basically, he first pointed out that law firms are responsible for the conduct of their partners if carried out within the scope of their employment:

But Perkins Coie is/was exposed to criminal culpability because a corporation is responsible for the criminal acts of senior employees done within the course and scope of their employment. PC benefitted financially from the work done by Sussmann--criminal acts--and maybe Elias.

In other words, PC would be responsible for Sussmann and Elias’ representation of the Clinton Campaign—but also for the fact that Sussmann and Elias funneled possibly millions of dollars through PC’s accounts in order to conceal Clinton Campaign payments for oppo research to Fusion GPS. That wasn’t embezzlement, because it wasn’t really PC’s money, but this type of money laundering is likely in violation of campaign finance laws. So the question becomes: What was PC’s knowledge and involvement in this scheme by two senior PC employees? It strains credulity to suppose that the firm wasn’t aware of that amount of money flow passing through the firm rather than directly into the partners’ pockets. Whatever the facts, that explains PC arguing to Durham that, whatever, it wasn’t sufficient for Durham to, like, take legal action against PC as an entity.

Shipwreckedcrew explains the mechanism by which this whole dance of investigation and negotiation took place. Basically, the firm hires an outside Director who employs outside lawyers to investigate whatever the law firm was up to. They, in turn, make the law firms case to Durham that, while PC may indeed have employed and benefited from the shenanigans of certain bad boys, PC as an entity should not be held responsible for their bad behavior. That’s what the NYT article is talking about re the “outside law firm.” Durham, in the meantime, conducts his own investigation.

Shipwreckedcrew makes the further point, based on his past experience with such a case, that this is a very time consuming process. I would argue that the amount of time that has passed would have been sufficient to wrap this up—unless the PC issue was tied in to other aspects of Durham’s investigation:

I'm 100% certain that Durham looked at the question of whether to charge the firm -- he might have sent them a target letter. This is the type of decision-making that takes a lot of time.

Everyone screaming about how long Durham has been at this are voices of ignorance.

At this point Durham may still not have come to a final decision regarding the fate of PC, although on balance its seems more likely that he has. On the one hand, as shipwreckedcrew points out, John Durham isn’t Andrew Weissmann, so he isn’t interested in putting hundreds if not thousands of innocent people out of work. On the other hand, from a distance it’s hard to excuse the (call it) lack of oversight by PC regarding the activities of Sussmann and Elias.

Now, before moving on, we should address some speculation that shipwreckedcrew engages in. He suggests—although he doesn’t insist on this point—that Marc Elias may be cooperating with Durham. He also offers some counter considerations.

Marc Elias is a very, very big fish in the ocean of Dem political campaigns and election law generally. It’s probably not too much to say that he’s a whale in that ocean. That’s his whole life—certainly from a professional standpoint but probably also from a personal standpoint. That means Elias is a huge target for Durham, and he’s not going down easy—after all, Durham has sketched out a conspiracy that includes the Clinton campaign. Given that Elias was the lawyer for both the DNC and the Hillary campaign, unlike shipwreckedcrew I find it next to impossible to believe that he had no knowledge of what Sussmann and Fusion GPS and others were up to. Any amount of knowledge of these activities on the part of Elias would implicate him in the conspiracy, and there’s certainly plenty of evidence that Elias and Sussmann were in regular contact regarding the Hillary campaign. That also means that any knowledge imputed to Elias was also very likely passed on to Hillary—Marc’s mouth to Hillary’s ear, or something very like that. By the same token, Durham would likely be very cautious about speaking with Elias and giving away anything about his investigation—although Durham would obviously be perfectly happy to listen to anything Elias had to offer. But any kind of formal cooperation agreement seems unlikely to me at this point.

Back in the day, as it now seems, when we were all momentarily expecting major indictments from Durham—late Spring, no, make that July, no wait, September—I several times made the point that everything Durham was doing showed that his investigative road led straight to Team Mueller. There was the whole Flynn case, for example. Then there was the FISA, which was renewed as a priority for Team Mueller, with the help of some creative writing by Kevin Clinesmith. Later, we saw Special Agent Barnett’s 302, in which he shared his views on Team Mueller ops with Durham.

All these people—Van Grack in the Flynn case, Clinesmith, and Barnett—are relatively low level figures on Team Mueller, but they do possess inside knowledge and were subject to direction from above. They may be able to implicate other more important players. One of those players would be Andrew Weissmann, who had a finger in virtually every anti-Trump pie, and that may include matters we’re not even aware of. All three of the named individuals above would have interacted with Weissmann, who played a key role on Team Mueller. Did Weissmann know anything about the Alfa Bank hoax, too? On the one hand, that might not matter, given Weissmann’s involvement in so much else, but I would never discount the possibility, simply based on his connections. After all, we know that he met directly with Chris Steele, with Strzok, and with Bruce Ohr during the 2016 campaign, in late September and October—and likely afterwards as well. Did I just mention Bruce Ohr? Yes, I did. He still exists. The possibilities are virtually endless. But all roads—including Team Mueller—lead to the Hillary campaign.

And now (h/t commenter EZ) we are reminded that shipwreckedcrew observed that one reason a lawyer might step down from a plum partnership gig at a super important law firm might be because he received a target letter:

Note the date. Coincidence, that he stepped down just as Durham rumors were heating up again? Maybe yes, maybe no—but partner at Jenner & Block isn’t a gig many lawyers would lightly leave behind. I wasn’t willing to pay the subscription so don’t know what Weissmann is up to. Nevertheless …

The bottom line is that there’s a lot going on here. And Durham plays it close to the vest, without leaking.