What's In The Sussmann Indictment?

Plenty.

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. Here’s a readable link to the indictment:

US v. Michael A. Sussmann

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.

The importance of Sussmann’s lie lies in the fact 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 and 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.

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 Durhams documents—was billed to the Clinton Campaign, including all his communications with Elias and Joffe.

Without getting too far into the details, what Durham shows is that there were discussions among these conspirators about faking information to create the impression of suspicious internet communications. Ultimately, over the reservations of some of the researchers, a scheme was developed by Joffe (and approved by Sussmann) by which the FBI would be presented with a “plausible” narrative. It was a narrative that the conspirators knew would never have fooled a true DNS expert, but would be “plausible” enough to at least temporarily pass muster with a mere security expert. In other words, they knew that what Sussmann presented to the FBI’s Baker was made up. False.

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.

There are two other items that I found particularly striking.

After the meeting with Sussmann, Baker consulted with the FBI’s top counterintelligence officer, Bill Priestap. Priestap retained notes of the meeting. Priestap’s notes confirm two things:

  1. Baker told Priestap that Sussmann had assured him that he was not acting on behalf of any client; and

  2. Priestap, as also Baker, was well aware of Sussmann’s political connections, so the issue of whether Sussmann was acting on behalf of someone else (and they surely knew that the someone else would be Hillary Clinton) was a conscious concern for them.

Thus, Priestap’s notes confirm both the fact and the importance of Sussmann’s lie to Baker.

Lastly, but far from least, Durham includes an excerpt from Sussmann’s December, 2017, Congressional testimony. The entire exchange raises the question: Who, very precisely, is the “client” that Sussmann refers to? His billing for the described activities—which include his meeting with the FBI’s Baker—went to the Clinton Campaign. But the Clinton Campaign can’t engage in conversations with Sussmann. So who was the person he spoke with? Was it Marc Elias, the General Counsel for the Clinton Campaign? But Elias would not strictly speaking have been his “client”. He would have been his client’s lawyer. Which leads to the question, When Sussmann refers to his “client”, is he referring to Hillary Clinton in person?

Notice that at the beginning Sussmann openly states that his meeting with Baker was at the direction of his “client”. Later he tries to qualify that, but only in the sense that he and his “client” are on the same page so “direction” wasn’t really necessary.

Q: When you decided to engage the two principals, one [the FBI’s Baker] in September, [2016] and the general counsel of "Agency-2" in December, you were doing that on your own volition, based on information another client provided you. Is that correct?

A: No. [ He was not simply acting on his own.]

Q: So what was -- so did your client direct you to have those conversations?

A: Yes. [He was acting at the explicit direction of his client in contacting Baker.]

Q: Okay. And your client also was witting of you going to [Agency-2] in February to disclose the information that individual had provided you?

A: Yes. [In February, 2017, with Trump in the WH, Sussmann is still working the Alfa Bank hoax at the direction of this client.]

...

Q: Okay. I want to ask you, so you mentioned that your client directed you to have these engagements with the FBI and [redacted] and to disseminate the information that client provided you. Is that correct?

A: Well, I apologize for the double negative. It isn't not correct, but when you say my client directed me, we had a conversation, as lawyers do with their clients, about client needs and objectives and the best course to take for a client. And so it may have been a decision that we came to together. I mean, I don't want to imply that I was sort of directed to do something against my better judgment or that we were in any sort of conflict, but this was -- I think it's most accurate to say it was done on behalf of my client.

Unfortunately, Durham only presents this tantalizing exchange as evidence that Sussmann directly contradicted—to Congress—what he had said to Baker.