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The Setback In Russiagate Probe

Above Photo: Hillary Clinton. Evan Guest / Wikimedia Common.

The jury foreperson said politics wasn’t a factor.

But was any prosecution of a senior Clinton campaign official possible in a jurisdiction where Clinton beat Trump 91-4?

Michael Sussmann, an A-list attorney who was a senior advisor to Hillary Clinton’s 2016 presidential campaign, was acquitted by a jury in the federal District Court of the District of Columbia last week.

Sussmann had been accused of lying to the F.B.I., a crime widely considered to be a “process felony” or a “throwaway felony,” something the Justice Department charges you with when they can’t get you for anything else.  Even though the federal sentencing guidelines called for 0-6 months in prison had Sussmann been convicted, the loss of his law license and the humiliation of a felony conviction would have been a far worse punishment.

But that didn’t happen.  Sussmann was acquitted after the jury had deliberated for only six hours, two of which were spent eating lunch.  After the trial was completed, two jurors, including the foreperson, told The Washington Post that the verdict was not a close call or a hard decision.

The foreperson added, “Politics were not a factor. Personally, I don’t think it should have been prosecuted…The government could have spent our time more wisely.”  The second juror said, “Everyone pretty much saw it the same way.”

Four Vital Questions

The verdict raises several different — and important — questions.  First, how did this happen?  The evidence against Sussmann was pretty straightforward, at least if you take the F.B.I.’s word for it.  I’ll give you the details in a minute.

Second, why did this happen?  The jury foreperson said that politics was not a factor.  But was any prosecution of a senior Clinton campaign official even possible in a jurisdiction where Hillary Clinton beat Donald Trump 91-4?

Third, was this more a reflection on the incompetence and unpopularity of the F.B.I.?

And finally, was it because people still believe the false narrative of the Steele Dossier, that the Russians got Donald Trump elected president of the United States.

Opposition Research Masquerading as Intelligence

This case began with the Steele Dossier.  That document, compiled on behalf of the 2016 Clinton campaign by former British intelligence officer Christopher Steele, made a number of very serious accusations against Donald Trump, his company, and the Trump campaign.  Some of these accusations, if they had been true, would have constituted major crimes.

The allegations in the Steele Dossier included that the Russians had:

  • “cultivated Trump for at least five years” and that the operation was “supported and directed by Putin;”
  • that there was an “extensive and well-developed conspiracy of cooperation between the Trump campaign and the Russian leadership, with information willingly exchanged in both directions;”
  • that Trump had used “moles inside the DNC (Democratic National Committee), as well as hackers in the US and Russia” to spy on his political rivals;
  • that Trump had declined “sweetener real estate business deals,” but that he had accepted a regular flow of intelligence from the Kremlin on his political rivals;
  • that Trump hated former President Barack Obama so much that when he stayed in the presidential suite at the Ritz-Carlton Hotel in Moscow, he hired prostitutes to urinate on the bed while in his presence in order to defile the bed used during an earlier visit by the Obamas;
  • that the Russian intelligence service was responsible for the hack of the DNC’s emails, not an internal whistleblower, and that Wikileaks, which published the documents, was used only as a cut-out for plausible deniability;
  • and that the former pro-Russian President of Ukraine had told Putin that he had been making “untraceable” bribery payments to Trump campaign manager Paul Manafort, presumably for inside information or for passage back to Trump.

Literally nothing in the Steele Dossier was demonstrably true.  That’s the problem with raw intelligence, which was really just dressed-up as opposition research in this case.  It’s just a collection of unvetted rumors.

Steele, being a career intelligence professional, knew that.  He saw his job as putting all the rumors he could collect from his Russian contacts in one document and then sending it to the Clinton campaign.  But the Clinton people, including Sussmann, were not intelligence professionals. They wanted to accept the revelations as fact, which is what got them into trouble in the first place.

The Text Message

Sussmann’s role in this was that when the Clinton campaign received the Steele Dossier, which had also alleged that the Trump Organization was communicating with Russia’s Alpha Bank using a private encrypted server, he texted a contact at the F.B.I., former F.B.I. General Counsel James Baker, saying, “I have a time-sensitive (and sensitive) issue that I need to raise with you.  I’m coming on my own—not on behalf of a client or company—want to help the Bureau.”

That text message essentially kicked off the case.  Sussmann wasn’t going to speak to the F.B.I. as a private citizen.  He was going as a representative of the Clinton campaign.  At least, that was special prosecutor John Durham’s contention.

Durham thought he had proved that because when Sussmann got back to his office, he billed the Clinton campaign for the time he took to talk to Baker.  The billing document was entered into evidence as a prosecution exhibit.

This is where there was an odd twist in the case.  The Justice Department didn’t charge Sussmann with lying to the F.B.I. in the text message.  It’s unclear why, and DOJ has never explained it.

Instead, Sussmann was charged with lying to Baker in their actual meeting.  Baker testified that he was “100 percent confident that he said that” (that Sussmann was acting as a private individual) in the meeting.

“Michael’s a friend of mine and a colleague, and I believed it and trusted that the statement was truthful,” Baker said. Prosecutors alleged that when Baker then sent the information about Alpha Bank and the Trump Organization to F.B.I. agents for investigation, he could not tell them that the Steele Dossier was a piece of opposition political research from the Clinton campaign.

Wasted Time

As a result, F.B.I. agents wasted their time investigating the allegations.  For their part, the F.B.I. agents conducting the investigation said that all they knew was that the information had come from the general counsel, so it “must have been reliable.”

Sussmann’s attorneys countered that Baker was mistaken.  They found a note from a meeting at the Justice Department in March 2017 attended by Baker, senior Justice Department officials and F.B.I. agents, which mentioned the Alfa Bank investigation and said the information was brought to the F.B.I. “by an attorney on behalf of client (sic).” So therefore Sussman hadn’t misrepresented himself to Baker, his lawyers argued.

Baker said that he had only a vague memory of that meeting and that he had no recollection that anybody had said anything about Sussmann’s “client.”  Baker, however, had to admit that he had not taken any notes in the original meeting with Sussmann and that he was relying only on his memory, a violation of the F.B.I.’s standard operating procedure for meetings with people outside the F.B.I..

The case against Sussmann was clearly weak from the start.  It was also very poorly timed.  The decision to prosecute the attorney was taken while the F.B.I. was still reeling over allegations that it, not the Russian government, was the one responsible for giving the country Donald Trump.

Remember, former F.B.I. Director James Comey said in July 2016, four months before the presidential election, that he was recommending to the attorney general that Hillary Clinton not be charged for mishandling classified information by using a private email server.

But on Oct. 28, 2016, just days before the election, Comey felt compelled to send a letter to Congress saying that he was considering reopening the investigation against Clinton.  The act caused a political earthquake, and *The Washington Post* reported that a senior Justice Department official speaking on the condition of anonymity said, “Director Comey understood our position (on the Clinton investigation.)  It was conveyed to the F.B.I., and Comey made an independent decision to alert the Hill.  He is operating independently of the Justice Department.  And he knows it.”

Clinton was livid.  And she has always blamed Comey for the fact that she lost the election.

Going to the Media

Another of the Sussmann defense points was that neither he nor the Clinton campaign would have gone to the F.B.I. if they had wanted to spread rumors about Trump.  They didn’t trust the F.B.I., after all.  Instead, they said they would have gone to the media.  And go to the media they did.

Clinton campaign manager Marc Elias said during the trial that it was Clinton herself who ordered senior campaign officials to leak the claim that the Trump Organization had a secret channel to the Kremlin through Alpha Bank.  She had the information sent to Slate, which published it immediately.

The campaign then followed up with a statement expressing “alarm,” as if this were some sort of new revelation they had never heard before.  It was a false narrative that the Clinton campaign circulated for political gain.

The New York Times, though, even now that the trial is over, continues reporting from an alternative reality.  Journalist Charlie Savage, who covered the Sussmann trial for the paper, wrote the day after the verdict that the trial “centered on odd internet data” after it became public that “Russia had hacked the Democrats.”

A logical conclusion was that the information in the Steele Dossier was true because “Mr. Trump had encouraged the country to target Mrs. Clinton’s emails.”  Savage continued that, “Trying to persuade reporters to write about such suspicions is not a crime.”

Nobody ever said it was a crime.  That’s not why Sussmann was charged in the first place.  He was charged because the F.B.I. believed he had lied to them.  And there was never any evidence that “Russians had hacked Democrats,” by the way.

None of that matters anymore.  It’s all over.  Sussmann is free to go.  The F.B.I. looks like a bunch of incompetent boobs and that Durham wasted millions of dollars of the taxpayers’ money.  And The New York Times still spins a different story.

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