The Hillary Clinton campaign did not want its attorney, Michael Sussmann, to share the Alfa Bank data with the FBI, jurors were told yesterday during the defense’s opening arguments in the special counsel’s criminal case against Sussmann. But the information known to date, as well as the modus operandi of the Spygate players throughout the years they peddled the Russia-collusion hoax, render this argument laughable.
On Tuesday, trial in United States v. Sussmann began in earnest following a day of jury selection. At issue is whether the former Clinton campaign attorney lied to former FBI General Counsel James Baker when Sussmann provided him data and whitepapers purporting to show the existence of a secret-communications network between the Russian-based Alfa Bank and Donald Trump. Special Counsel John Durham’s team claims Sussmann lied when he shared the Alfa Bank “intel,” saying he wasn’t acting on behalf of a client, while, in fact, Sussmann represented both tech executive Rodney Joffe and the Clinton campaign.
Prosecutor Brittain Shaw set the stage for the jury, telling the 12 jurors and four alternates during opening argument that “Sussmann’s actions were part of ‘a plan to create an October surprise on the eve of a presidential election’ and to get the FBI to investigate, arguing the plan ‘largely succeeded.’”
Sussmann and Joffe “leaked the Alfa-Bank allegations to the New York Times,” Shaw continued, but “when that wasn’t published immediately, Sussmann brought a sense of urgency to the FBI about the media being on the verge of running a story.” According to prosecutors, “the FBI getting involved would make the story ‘more attractive’ to the press” and “Sussmann’s goal was to ‘inject’ the FBI into a presidential election.”
Not so, Sussmann’s lawyer Michael Bosworth countered, telling the jury in the defense’s opening argument that his client “had a genuine interest in national security” and was concerned about the data at a time when questions about Trump’s connections to Russia were swirling. According to Sussmann’s team, the Clinton campaign planned “to take this new weird thing public,” and they handed it to The New York Times. That’s what the campaign wanted—press coverage that hurt Trump and helped Clinton.
“The meeting with the FBI is the exact opposite of what the Clinton campaign would’ve wanted,” Bosworth told the jury, suggesting “the FBI quashed the news story after learning about it from Sussmann.” “The FBI meeting is something they didn’t authorize, they didn’t direct him to do, and they didn’t want him to do,” Sussmann’s lawyers argued. But once the Times was ready to publish the material, Sussmann called Baker “to help the FBI” “and warn them that a story was coming,” the defense claimed.
The evidence on all fronts suggests otherwise. First, emails exchanged between reporters and Peter Fritsch, a co-founder of the investigative research firm, Fusion GPS, that Perkins and Coie had hired on behalf of the Clinton campaign, indicate the Times was nowhere near “ready to publish the material” when Sussmann handed it off to Baker on September 19, 2016.
For instance, in one thread between Fritsch and the Times’ Eric Lichtblau, bearing the subject line “alfa and trump” and dated October 5, 2016, the duo were discussing Alfa Bank data published on Reddit, apparently by April Lorenzen. At that point, Fritsch is still telling the Times he has “no idea” where the material came from, but that “it’s either someone real who has real info or one of the donald’s 400 pounders,” whatever that meant. Fritsch then adds that the “de vos stuff looks rank to me,” in reference to the supposed communications between the Michigan health system’s computer and Alfa Bank.
Another email thread from October 18, 2016 also indicates the Times was not ready to publish the story. In that thread, Fritsch is pushing Reuter’s Mark Hosenball to run the Alfa Bank story. When Hosenball told him “the problem is that the nature of the data is way above my level of competence,” Fritsch responds, “it’s everyone’s problem” and then suggests he call David Dagon at Georgia Tech.
Then, on October 31, 2016, hours before Slate published the Alfa Bank story, in promoting the about-to-break news to Reuters, Fritsch wrote the “USG,” meaning the “United States government,” is “absolutely investigating.” This email shows Fusion GPS knew the value an FBI investigation added to a story it was pushing for the Clinton campaign.
A second problem with Sussmann’s storyline that the FBI meeting was “the exact opposite of what the Clinton campaign would’ve wanted” because it caused the government to quash the New York Times article flows from the fact Sussmann did not originally tell Baker the name of the outlet supposedly poised to publish the story.
In his congressional testimony, Baker explained that after he handed the Alfa Bank material off to the counterintelligence division, they wanted “more time to evaluate it before the media started publishing stuff.” According to Baker, agents asked him to “go back to Sussmann and find out who in the media is going to publish this because we might want to ask them to delay.”
In his testimony, Baker was fuzzy on the details and did not remember whether Sussmann had mentioned the media having the Alfa Bank material during their initial September 19, 2016, meeting or only later during a follow-up conversation. (If the latter, that will really throw a wrench in Sussmann’s theory of defense.)
What Baker stated unequivocally, however, was that Sussmann had not originally identified The New York Times as the outlet supposedly ready to run the story, and that it was only later when Baker followed up with Sussmann that they learned that fact. The FBI then “went to the New York Times” and “started a series of conversations with them to try to get them to slow down,” he said.
If Sussmann’s goal were truly to provide the FBI with a heads-up of the impending story, as his attorneys argued yesterday, he accomplished that objective on September 19, 2016. To achieve that goal, Sussmann would have no reason to answer Baker’s follow-up question concerning the name of the media outlet ready with the Alfa Bank story. In fact, as a lawyer, he would have a good reason to refuse: It was in the Clinton campaign’s interest for the story to run.
But if Sussmann instead sought to spur the media into action, sending the FBI into the arms of The New York Times proved a perfect plan, as it made the Alfa Bank story more marketable.
Here, we see a third problem with Sussmann’s line of defense: From the Steele dossier to the FISA surveillance of Carter Page, the Clinton campaign repeatedly fed the FBI and U.S. intelligence agencies supposed “intel” on Trump, which it also peddled to the press. Then it used leaks of the government’s investigation into Trump’s supposed connections with Russia to drive more media coverage of the Russia collusion story.
Yet Sussmann’s legal team told the jury the FBI meeting was something the Clinton campaign “didn’t authorize,” “didn’t direct him to do” and “didn’t want him to do.” That line of argument presents prosecutors with the perfect opening to inform the jury of the Clinton campaign’s modus operandi, and it will likely do so with the questioning of Sussmann’s former legal partner Marc Elias, who is scheduled to testify later today.
Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.