Text message makes case ‘materially’ worse for Clinton lawyer Michael Sussmann

On a Sunday night just weeks before the 2016 presidential election, top Democratic lawyer Michael Sussmann allegedly texted his old friend, the FBI’s then-general counsel James Baker, to say that he urgently needed to convey “sensitive” information to the Bureau — “not on behalf of a client or company,” but just because he was a good citizen who wanted to help the government.

The information, it turns out, was sculpted to portray Donald Trump, then the Republican nominee for president, as if he were in cahoots with the Kremlin. I say “sculpted” advisedly. In reality, according to the false-statements indictment against him, Sussmann was actually representing two clients: Rodney Joffe, an information technology expert, and the Democratic campaign of Trump’s opponent, Hillary Clinton.

Joffe, to whom the Sussmann indictment refers as “Tech Executive-1” and describes as angling for a job in the anticipated Clinton administration, was then working with a team of IT pros to curate records of internet communications. His objective, according to the indictment, was to project the appearance of a communications back-channel between Trump Tower in New York City and Alfa Bank, an important Russian financial institution with ties to Vladimir Putin’s regime. The Clinton campaign reportedly wanted to depict the allegation as so serious that the FBI was investigating it. Sussmann, the Washington insider who was billing his time on the Trump/Russia matter to the Clinton campaign, was the perfect messenger to get the FBI’s attention.

The existence of the critical text message was revealed on Monday by prosecutor John Durham, the Justice Department special counsel who is investigating the origins of “Russiagate” — as the FBI’s probe of former President Trump’s supposed collusion with Russia is popularly known. Russiagate appears to have been ignited by bogus opposition research manufactured by the Clinton campaign, whose operatives hyped it to media outlets and government officials.

Last September, Durham indicted Sussmann, alleging that he made false statements to investigators. Specifically, Sussmann — who has denied the charge and pleaded not guilty — is alleged to have claimed that he was not acting on behalf of any client when he delivered to the FBI computer data files and an analytical “white paper,” which were said to implicate Trump.

The first observation to make about the startling text message revelation we’re just learning about is that it also must have been unknown to prosecutors until recently. There is no mention in the indictment of Sussmann’s texting Baker on Sept. 18, 2016, to set up the meeting, which occurred at the FBI’s Washington headquarters the following day. That would seem unfathomable if Durham had access to the text when drafting the charges.

According to prosecutors, the text, sent at 7:24 p.m., states: “Jim — it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. Do you have availability for a short meeting tomorrow? I’m coming on my own — not on behalf of a client or company — want to help the Bureau. Thanks.”

The text, as Durham framed it in Monday’s court submission, is “the same lie” that Sussmann stands accused of, told “in writing” by Sussmann himself. As such, it is virtually the whole case in a small compass.

Put aside that there are many actions and statements of comparably less importance that the indictment describes in great detail — strongly suggesting that prosecutors would have quoted from this text had it been known to them. As related in the indictment, Sussmann’s lie about who put him up to transmitting the Trump information to the FBI happened at the meeting with Baker. The text message, however, was not only written prior to the meeting but triggered the meeting.

Further, the text message, standing alone, is a statement to the government. Ergo, if the prosecution’s theory is sound, Sussmann would be guilty of making a false statement even if the meeting with Baker had never happened. A statement of such significance, made by the defendant himself, would have been central to the indictment, not omitted from it, if prosecutors had access to it.

Assuming the text proves to be what prosecutors say it is, it would be extremely damaging to Sussmann in two other respects:

1. Materiality: It has been anticipated that Sussmann’s main defense would be materiality. For a false statement to be actionable under federal law, it must be material — i.e., it must have been of the kind that naturally would make a difference to investigators in how they went about their work and how they evaluated evidence.

Obviously, it is well known that Sussmann represents Democrats. He was a partner at the Perkins-Coie firm. In that capacity, he not only represented the Democratic National Committee (DNC) in connection with the hacking of its servers; he worked closely with his partner, Marc Elias, the main lawyer for the Clinton campaign. It is expected, then, that his defense would posit that the FBI had to know he was tightly aligned with Democrats: Even if Sussmann had been less than transparent about his loyalties, his lawyer would argue that the Bureau inevitably weighed his well-known, pro-Democratic bias in assessing any evidence against Trump that he proffered.

The text, however, undermines that defense. Durham undoubtedly will contend that the defendant was emphatic about not representing any client because, as a former prosecutor who worked closely with the FBI for years, Sussmann well knew that his motive in bringing the anti-Trump information would be highly significant — i.e., material — to the FBI.

Furthermore, in allegedly sending the text, Sussmann was patently capitalizing on his background as a Department of Justice (DOJ) cybersecurity lawyer. In their early careers, he and Baker were contemporaries at DOJ. In allegedly arranging their 2016 meeting, Sussmann exploited that relationship. Mere mortals who want to report criminal conduct to the FBI are expected to deal with whatever low-rung FBI agent is on duty that day. They don’t just happen to have the FBI general counsel’s cell phone number at the ready. They don’t get to zip a text to their friend “Jim” on Sunday night, then instantly get a meeting on Monday, in the offices of the brass at the J. Edgar Hoover Building. But Sussmann did. The not-so-subtle message of his text was that, like Baker, he cared deeply about protecting the country, and was thus solely looking to “help the Bureau,” not to advance the interests of a paying client.

2. Shoring up Baker’s testimony: The only witness to Sussmann’s lie, as alleged in the indictment, is Baker. Their meeting on Sept. 19, 2016, was one-on-one. Sussmann’s lawyers are expected to contend that Baker’s recollection of what was said at their meeting, which was not recorded, is faulty.

In prior testimony, including before Congress, Baker has seemed hazy on what exactly Sussmann told him about whom he was representing. In fact, Durham’s indictment relies on the claim that, immediately after meeting with Sussmann (i.e., when Baker’s memory was freshest), the general counsel reported to a top FBI counterintelligence agent that Sussmann had said he was not representing any client. It is questionable whether the court would admit such testimony from the agent; there is a good rules-of-evidence argument for doing so, but it’s no sure thing.

Now, however, Baker’s recollection becomes much less important. The jury will have a clear statement allegedly written by Sussmann himself. What matters is what Sussmann said, not what Baker remembers.

Trial of the case is scheduled to begin in mid-May. Durham’s disclosure indicates that things are already getting hotter for Sussmann.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.