John Durham pushed back on Michael Sussmann’s claims that former FBI General Counsel James Baker undermined the special counsel’s false statements indictment against the Democratic lawyer, contending evidence from five government employees, including Baker, supports the charge.
The indictment against Sussmann centers on a Sept. 19, 2016, meeting between him and Baker in which Sussmann pushed debunked allegations of a secret back channel between Russia’s Alfa Bank and the Trump Organization. Durham contends that while Sussmann told Baker he was not working for any particular client, Sussmann was secretly doing the bidding of Hillary Clinton’s campaign and billing his services to her, as well as working on behalf of technology executive Rodney Joffe.
Sussmann denies misleading the FBI and pleaded not guilty.
As part of its effort to push for an early May 2022 trial date instead of the late July 2022 trial date preferred by prosecutors, Sussmann’s team claimed on Monday that last week, Durham’s team handed over documents about Baker’s statements about the 2016 meeting that it said “directly contradict the Special Counsel’s allegation that Mr. Sussmann affirmatively told Mr. Baker that he was not meeting with him on behalf of any clients.” The team pointed to excerpts of interviews Baker gave to DOJ inspector general Michael Horowitz’s investigators in 2019 and to Durham’s team in 2020.
Durham’s team quickly pushed back in a Tuesday court filing.
“As the defendant is aware from discovery, both of those interviews occurred years after the events in question, and Mr. Baker made these statements before he had the opportunity to refresh his recollection with contemporaneous or near-contemporaneous notes that have been provided to the defense in discovery,” Durham’s team said. “Indeed, the defendant’s motion entirely ignores law enforcement reports of Mr. Baker’s subsequent three interviews with the Special Counsel’s Office in which he affirmed and then re-affirmed his now-clear recollection of the defendant’s false statement.”
Durham’s team made it clear in October that it plans to call Baker to testify to prove its case.
Sussmann’s team noted to the court that Baker said in an excerpt of an interview from 2019 that Sussmann talked about “his clients, who were, he described as I recall it, sort of cyber-security experts.” Durham’s team also wrote in an excerpted summary in 2020 that “Baker said that Sussmann did not specify that he was representing a client regarding the matter, nor did Baker ask him if he was representing a client. Baker said it did not seem like Sussmann was representing a client.”
Sussmann’s lawyers said the existence of what they see as exculpatory information “only underscores the baseless and unprecedented nature of this indictment.”
But Durham’s team said that the discovery handed over to Sussmann’s team so far actually “reflects that the recollections and/or contemporaneous records of five separate government employees support the Indictment’s allegations.”
In the indictment, Durham said Baker spoke with Bill Priestap, then the assistant director of the FBI’s counterintelligence division, after meeting with Sussmann, that Priestap “took contemporaneous notes,” and that Sussmann had said he was not doing his work “for any client.”
The prosecutors noted that Sussmann failed to mention that another high-ranking official in the FBI Office of General Counsel also took notes that reflect that Sussmann told Baker he had “no specific client.” Durham’s team also said that Sussmann’s motion ignored a memorandum by two “Agency-2” employees after their Feb. 9, 2017, meeting with Sussmann that also reflected that Sussmann said he was not representing “a particular client.”
Durham’s team argued that it was “meritless” for Sussmann to claim that a May 2022 trial date is needed because the prosecution had allegedly only belatedly disclosed Brady evidence, with the prosecutors contending that “the defendant’s motion provides a skewed portrayal of the purported Brady evidence at issue by cherry-picking excerpts from the substantial discovery the Government has already provided to the defense.”
“Brady evidence” refers to the Supreme Court decision in Brady v. Maryland that requires prosecutors to hand over all potentially exculpatory evidence to the defense.
Baker, who left the FBI in 2018, previously defended the flawed Trump-Russia investigation and the FBI’s handling of Christopher Steele’s dossier. Steele’s main source, Igor Danchenko, was also indicted by Durham for allegedly lying to the FBI.
Durham’s team argued that it “shares the defendant’s desire to conduct as speedy a trial as possible in this case” but emphasized it “involves complex discovery and occurs in the midst of an international pandemic.” The prosecutors argued that “a trial date in late July 2022 is reasonable and necessary for the Government to fully declassify and produce discovery” and contended that Sussmann’s request for a May 2022 trial date “would rush and unnecessarily truncate” what needs to happen before the trial.
The prosecutors noted they had handed over more than 91,000 pages in unclassified discovery and more than 5,000 pages in classified discovery to the defense team and insisted that the team was still “working expeditiously to satisfy its discovery obligations.”