“Tell me lies, tell me sweet little lies.” Sounds like I’m humming Fleetwood Mac, but I’m really just capturing the signal that top officials at the FBI seemed to be sending to Clinton campaign lawyer Michael Sussmann.
Sussmann claimed he was not representing any client when he brought the FBI internet data that he insisted showed that Donald Trump had established a communications back channel with the Kremlin, through servers at Russia’s Alfa-Bank.
In reality, Sussmann was representing the presidential campaign of Hillary Clinton. He wanted an “October surprise” to torpedo Trump’s chances, and what better way than to make it look like the FBI was investigating the candidate?
It’s clear from text messages and testimony that Sussmann lied about not having any ulterior motives, and simply acting as a concerned citizen.
But his defense presents a problem — both to the FBI’s reputation and special counsel John Durham’s prosecution of the lawyer. Sussmann argues that no matter what he said, FBI officials knew he was aligned with the Clintons.
The bureau’s top-tier officials at the time — counsel James Baker, Director James Comey, Deputy Director Andrew McCabe and top counterintelligence agent Bill Priestap — were sophisticated actors. It is inconceivable that they did not grasp the partisan source of the information. Just months earlier, Sussmann had represented the DNC when it claimed to be hacked by Russia. In fact, Sussmann had blocked the FBI from examining the DNC’s servers, retaining a private contractor so that Democrats could maintain control of the investigation. The bureau knew exactly who Sussmann was and whom he represented.
What we learned at the trial this week is that, notwithstanding Baker’s insistence that he believed Sussmann’s cover story, FBI headquarters officials fully realized they were acting on highly political information and took steps to conceal that fact.
First, a decision was made to treat Sussmann, the source, as a confidential informant. This was not done to protect Sussmann’s security. It was done to protect the FBI’s reputation. The informant pretext enabled headquarters to conceal Sussmann’s identity from the line agents in Chicago who were tasked to assess the Alfa-Bank information.
Consider the source
As good investigators, the agents wanted to know the source of the information so they could assess the purveyor’s motive and thus the data’s likely reliability. They were frustrated and annoyed that headquarters would not identify the source and allow him to be interviewed.
If they had been told Sussmann was behind the data, they would instantly have known that the information was political. As it was, they quickly concluded that the information was nonsense, that it did not come close to establishing a Trump-Kremlin communications channel, and that it probably came from someone with an anti-Trump agenda.
Second, the headquarters effort to cover up Sussmann’s identity reached such absurd heights that the FBI itself made false statements in documenting the investigation. In the “electronic communication” by which the bureau opens cases, agents claimed that the information had come not from Sussmann, not even from a confidential source, but from … wait for it … the US Department of Justice. This was so ridiculous that, embarrassingly, none of the agents involved could explain how that happened.
Third, the FBI’s brass was so hot to nail Trump for supposedly being a clandestine agent of Russia that the line agents’ rejection of the evidence made no difference. “People on the 7th floor to include the Director are fired up about this server,” said headquarters agent Joe Pientka in a message to one of the Chicago agents.
The 7th floor houses the suite of top executive offices at FBI headquarters, including that of Director Comey. When the Chicago cyber investigators found no basis for criminal charges, they were told to keep the case open as a counterintelligence matter. “Priestap says it’s not an option — we must do it,” admonished Pientka, referring to the bureau’s top counterintelligence official.
How Sussmann wins
As the trial draws to a likely close Friday, then, despite having made a clear false statement, Sussmann seems to be in the driver’s seat. His lawyers will be able to argue convincingly that: (a) FBI officials knew that Sussmann was a top Democratic lawyer and that, if he was peddling anti-Trump information right before the election, it had to be for Hillary Clinton’s benefit; (b) FBI investigators were misled not by Sussmann but by their own headquarters; (c) it was the FBI, not Sussmann, who falsely stated that the Alfa-Bank information came from the Justice Department; and (d) any false statement Sussmann may have made could not have been material because the FBI was already hellbent on investigating Trump on suspicion of being a Russian asset — it made no difference that the Alfa-Bank data, like the Steele dossier, was bogus.
No wonder Sussmann decided not to testify. No need to take that risk when things are going your way.
As for the FBI, regardless of the outcome of Sussmann’s trial, the essence of Durham’s assignment remains the same: Get to the bottom of how and why the government’s law enforcement and intelligence apparatus was put in the service of Democratic Party politics, hamstringing a Republican president’s capacity to govern.
The FBI played a huge role in that scandal. In fact, if Sussmann is acquitted, that will have a lot more to do with the bureau’s machinations than Sussmann’s innocence.
Durham must file a full report at the conclusion of his probe. The Sussmann trial illustrates how vital it remains that the public have accountability, and that the FBI’s foray into partisan politics never happens again.
Andrew C. McCarthy is a former federal prosecutor.
