A former top official at the FBI told a federal jury on Thursday that he was “100 percent confident” that Michael Sussmann, a prominent cybersecurity lawyer, said he wasn’t acting on behalf of any of his clients when he gave the FBI information weeks before the 2016 presidential election about an alleged data link between the Trump Organization and a Russian bank.
The daylong testimony from former FBI General Counsel James Baker in federal court in Washington backed the central claim of the narrow false-statement case special counsel John Durham brought against Sussmann last year: that he lied to Baker by hiding the involvement of the Clinton campaign and the Democratic National Committee in promoting the alleged link.
On the stand as a prosecution witness on Thursday, Baker said unequivocally that Sussmann denied during a September 2016 meeting that he was acting on behalf of any particular client.
“I’m 100 percent confident that he said that in the meeting,” Baker said of the one-on-one session at FBI headquarters. “My memory on this point, sitting here today, is clear.”
Jurors also saw a text message that Baker said he discovered on his phone earlier this year in which Sussmann requested the meeting about a “time-sensitive (and sensitive)” issue and said he was “coming on my own — not on behalf of a client or company — want to help the Bureau.”
However, the indictment doesn’t charge Sussmann with lying in a text message, only at the in-person meeting.
And Baker conceded on Thursday that he’d made an “inconsistent” statement about the critical fact of Sussmann’s statements there on at least one prior occasion, and that his memory on the point had evolved over time. By the end of the day, Baker’s overall testimony provided significant fodder for Sussmann’s defense and perhaps enough uncertainty to produce the reasonable doubt that could lead to Sussmann’s acquittal.
Durham’s prosecutors contend that Sussmann’s alleged lie was significant because disclosing any role the Clinton campaign or the DNC had in the material or the decision to send it to the FBI would have changed how investigators responded to the information.
A member of Durham’s team told the jury in opening statements that Sussmann’s actions were part of an effort to use the FBI as a “political tool” to launch an investigation that would damage Trump politically by producing an “October surprise.”
Jurors have already heard testimony that key experts at the FBI concluded within less than a day that the evidence did not support the existence of the suspected data link between a server with Donald Trump’s name in the address and another server operated by Alfa Bank, a Russian bank owned by allies of Russian President Vladimir Putin.
However, Sussmann is not charged with submitting false data or reports to the FBI, only with the alleged false denial about his clients. And Sussmann’s defense has argued that he had no reason to doubt the individual who brought him the data, Rodney Joffe, a technology specialist and business executive widely respected in the internet field.
So far, Durham’s team has produced considerable evidence from law-firm billing records and testimony that researchers working for Clinton and the DNC were acutely interested in the alleged Alfa Bank link and that Sussmann worked at the same law firm handling those issues for the Democratic committees, Perkins Coie.
However, the case that Sussmann was acting on behalf of those entities when he went to the FBI remains largely circumstantial.
One point prosecutors scored on Thursday was showing jurors a letter to the editor from a top Perkins Coie lawyer who denied that Sussmann met with the FBI on behalf of the Clinton campaign or the DNC, but seemed to acknowledge that the meeting was for some other client.
“Mr. Sussmann’s meeting with the FBI General Counsel James Baker was on behalf of a client with no connections to either the Clinton campaign, the DNC or any other Political Law Group client,” Perkins Managing Partner John Devaney wrote in the October 2018 letter published in the Wall Street Journal.
Jurors have already heard that Joffe and his firm Neustar were clients of Sussmann, so Devaney’s statement suggested that Sussmann was acting for them and that he might have lied if he told Baker or others he wasn’t acting on their behalf.
But defense attorney Sean Berkowitz noted that it was Sussmann who texted Baker a photo of Devaney’s letter to the Journal — a seemingly bizarre act if Sussmann knew it contained a falsehood that Baker might well recognize.
“Any idea why Mr. Sussmann would send you, to your knowledge, something that you say contradicts what he told you a couple of years before?” Berkowitz asked Baker during cross-examination Thursday afternoon.
“I don’t know,” Baker said. “You have to ask him.”
Another mystery that jurors learned about Thursday was how and why top FBI and Justice Department officials apparently received a briefing in March 2017 that the information Sussmann delivered to the FBI came from a lawyer representing a client, if Sussmann told Baker the opposite.
Berkowitz showed Baker and the jury notes that department attorney Tashina Gauhar took at that session that indicate the role of some client in bringing forward the information.
“‘Attorney’ brought to FBI on behalf of his client …. also advised others in media. NYT,” Gauhar wrote.
Baker was present at that meeting, but he said on Thursday he had no memory of the “client” issue coming up.
Berkowitz asked Baker why, if someone said at the meeting that the Alfa Bank information didn’t come from a lawyer representing a client, he didn’t just correct them on the spot since he was the one who first received the information at the FBI.
“Do you remember standing up and saying, no, you’ve got it wrong he didn’t have any clients?” the defense attorney asked.
“No, I don’t remember doing that or thinking that,” Baker said.
Both the prosecution and defense also discussed with Baker that he’d been the focus of a separate investigation Durham conducted into an alleged leak that appears to have involved a 2016 New York Times report about broad-based email surveillance that Yahoo conducted at the demand of the U.S. government.
Baker provided scant details about the probe but confirmed that Durham ran it and said it involved a telephone conversation he and a top FBI public affairs official had with a journalist “during which I made an authorized disclosure of information that I understood at the time to no longer be classified.”
Baker said he understood the disclosure to have been approved in advance by the FBI director and the director of National Intelligence, but other witnesses gave conflicting and or uncertain accounts. No action was ultimately taken, but the probe wasn’t formally closed until after Durham got a new assignment in 2019 to look into the origins of the FBI’s Trump-Russia investigation.
Baker said his potential liability in the earlier investigation hadn’t colored his answers to Durham in the inquiry that led to the Sussmann prosecution because he had a duty to answer truthfully and because Durham’s review of the alleged leak was essentially complete by the time he was moved onto the new Russia-related probe.
However, Sussmann’s defense did show jurors a text in which Baker seemed to lament Durham’s new portfolio.
“Now I get to be investigated for another year or two by John Durham!!! Lovely,” Baker wrote to a friend, Ben Wittes, in May 2019.
Jurors also saw another candid text message Baker sent Sussmann in October 2018, declaring that Baker’s questioning by a House committee looking into issues related to Trump and Russia “sucked.” Baker said he was taken by surprise during the contentious two-day session when Republican lawmakers started focusing on Sussmann’s visit to convey the Alfa Bank claims.
“It sucked. It was terrible. It sucked at multiple levels,” Baker said on Thursday, seeming freshly disturbed by having to recount the experience. “As a citizen of the United States, it’s upsetting and appalling to see members of Congress behaving the way that they were behaving. It was very upsetting to me.”
Berkowitz asked Baker whether being called to testify in the current case against Sussmann, whom Baker has called a friend, was also a “terrible” experience.
“This is more orderly,” Baker said as he pointed at his chair. “It’s terrible, but orderly.”