Durham's flop: Jury acquits Hillary lawyer in Russiagate

AP Photo/Manuel Balce Ceneta

This probably puts a spike through any further efforts by John Durham to probe the depth of the Alfa Bank dirty trick, let alone the origins of the larger Russia-collusion obsession. A jury acquitted Durham’s first criminal trial target of lying to the FBI about his connections to the Hillary Clinton campaign, despite multiple witnesses testified to Michael Sussmann’s misrepresentation.


It only took the jury six hours to acquit Sussmann:

Michael Sussmann, a prominent cybersecurity lawyer with ties to Democrats, was acquitted on Tuesday of a felony charge that he lied to the F.B.I. about having no client in 2016 when he shared a tip about possible connections between Donald J. Trump and Russia.

The verdict was a blow to the special counsel, John H. Durham, who was appointed by the Trump administration three years ago to scour the Trump-Russia investigation for any wrongdoing. …

On Sept. 19, 2016, Mr. Sussmann brought those suspicions to a senior F.B.I. official. Prosecutors accused him of falsely telling the official that he was not there on behalf of any client, concealing that he was in fact working for both Mrs. Clinton’s campaign and a technology executive who had brought him the tip.

Mr. Durham and his trial team used court filings and trial testimony to detail how Mr. Sussmann, while working for a Democratic-linked law firm and logging his time to the Clinton campaign, had been trying to get reporters to write about the Alfa Bank suspicions.

But trying to persuade reporters to write about such suspicions is not a crime. Mr. Sussmann’s guilt or innocence turned on a narrow issue: whether he made a false statement to a senior F.B.I. official at the 2016 meeting, by saying he was sharing those suspicions on behalf of no one but himself.


This might have been a semantic problem for the jury. Does an attorney representing a client have room to do anything on his own, even if it benefits his client? That’s an arguable position, although it would certainly be a stretch to sell that argument in most circumstances. It might be, however, that the fact that the Alfa Bank thread turned out to be an immediate nothingburger to the FBI that the jury assessed that his lie wasn’t material enough for a conviction on a felony charge under 18 USC 1001. Materiality is a key piece of that statute, emphases mine:

(a)Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1)falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2)makes any materially false, fictitious, or fraudulent statement or representation; or
(3)makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.


It’s possible that the jury saw the tip itself as immaterial to the investigation, or Sussmann’s connection to Hillary as immaterial to the tip. They might have decided instead that the only real issue here was whether Sussmann knew the tip itself to be false, which it does not appear that Durham established to a certainty, even though the statute itself would apply to his claims to not be working for a campaign. It’s almost impossible to see how they could have decided that Sussmann’s actions were entirely unconnected to his work for Hillary’s campaign.

TechnoFog has more on materiality, who insists that Sussmann’s misrepresentations were more than material enough to warrant a conviction:

In large part, the prosecution of Sussmann was hamstrung by the FBI’s investigation into the Alfa Bank allegations. That goes to materiality. How can the lies be material if the FBI’s investigation was so sloppy? (Answer: they were material because the lies helped open the investigation in the first place.)

On the issue of materiality, look to the testimony of FBI Special Agent Curtis Heide, whose repeated requests to interview the source of the Alfa Bank information were denied by headquarters. FBI Headquarters didn’t want this thing thoroughly vetted – even though they demanded the investigation be opened. As we stated during the trial:

Relatively early on in the investigation – on September 26, 2016 – Agent Heide sent a message to Pientka, requesting an interview of the source of the Alfa Bank white papers. By that time, Heide knew the white paper was bunk. He received no response from Pientka. He repeated this request on October 3, 2016. Agent Heide’s requests were rebuffed by his liaison at FBI headquarters[.]


Or it might just be a case of reasonable doubt on any or all of these points:

The bureau’s then-general counsel and the government’s star witness, James Baker, testified that he was “100% confident” that Sussmann had told him that he was not representing any client during the meeting. Prosecutors say he was actually acting on behalf of the Clinton campaign and another client, and that he hid that information so as to make it seem more credible and to boost the chances of getting the FBI to investigate.

Lawyers for Sussmann deny that he lied, saying that it was impossible to know with certainty what he told Baker since they were the only participants in the meeting and neither of them took notes.

They argued that if Sussmann said he wasn’t acting on the Clinton campaign’s behalf that that was technically accurate since he didn’t ask the FBI to take any particular action. And they said that even if he did make a false statement, it was ultimately irrelevant since the FBI was already investigating Russia and the Trump campaign and would have looked into the Alfa Bank data no matter the source.

We’ll know more if and when the jurors speak to the media about their deliberations. In the meantime, the acquittal likely has demolished Durham’s strategy to use Sussmann as a way to unravel the Clinton campaign’s dirty tricks in Russiagate, as my colleague Bonchie tweeted:


TechnoFog points to an indictment and another potential suspicious player that might allow Durham to rebound. That seems unlikely, though; losing this case at trial will likely encourage less cooperation with Durham’s team rather than loosen tongues, as Durham hoped to get out of a conviction. Like most special counsel probes, this one will probably end with a whimper rather than a bang.

Jonathan Turley anticipated this outcome when the case went to the jury. Still, Turley argues that Durham’s probe has at least provided some clear lessons from Russiagate:

Despite the trial judge’s rulings imposing strict limits on the scope of the trial evidence, Durham’s case still revealed new information on how the Russia collusion theory was pushed into the FBI and the media by the Clinton campaign. Perhaps the most ironic moment came when Sussmann’s defense team outed Clinton as personally approving the campaign’s effort to spread a baseless claim that the Trump organization maintained a secret channel to the Kremlin through Russia’s Alfa Bank. …

Regardless of what the jury decides regarding Sussmann, the combined record of the Steele dossier and the Alfa Bank claim makes the FBI look like an unindicted co-conspirator.

On the witness stand in Sussmann’s trial, for example, FBI general counsel James Baker was asked why it took him so long to turn over the most damaging evidence — a text message to him in which Sussmann said he was not representing any client in pushing the Alfa Bank claim to FBI officials. Baker explained that Sussmann was his friend and told prosecutors that “this is not my investigation. This is your investigation.”

In other words, there was no reason for the Justice Department to expect that Baker, a former top Justice lawyer, would help to make the case against Sussmann. It did not help the optics when Baker left the Justice Department and joined Brookings Institution, liberal think tank linked to key figures who framed the early Russian collusion claims. For some, it seemed like not just friends but “friends with benefits.”


That’s pretty weak sauce for a consolation prize. It still beats what most special counsels produce, though. Perhaps the long string of failures for special counsels will finally produce enough skepticism that people will stop demanding their appointment in future scandals.

Addendum: I’m seeing some gripes about not mentioning the Democrat-heavy jury pool and the partisan leanings of the judge. Durham filed the indictment in the DC circuit and therefore had to try it there. I don’t think the fact that the jury pool was heavily Democrat is exactly a piece of breaking news.

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