Sep 21, 2021

The Trump-Russia probe.

The Trump-Russia probe.
Donald Trump speaking at CPAC. Photo: Gage Skidmore

What does the latest indictment mean?

Today's read: 10 minutes.

We're covering the latest from John Durham's probe into the Trump-Russia investigation.

Quick hits.

  1. The Department of Homeland Security is investigating images of Border Patrol agents on horseback turning Haitian migrants away from the border. (The images)
  2. Democrats are becoming increasingly concerned that President Joe Biden's domestic agenda could implode. (The worries)
  3. The Chinese construction giant Evergrande may default on $300 billion of liabilities, a possibility that is causing some jitters in the global stock market. (The risk)
  4. Justin Trudeau will remain as Canada's prime minister after an election victory on Monday, in which he lost power but held onto his job. (The results)
  5. President Biden is making his first speech as President at the United Nations today. (The speech)

Today's topic.

Trump, the FBI and Russia. Yes, it's 2021. Yes, we're still getting new details. On Thursday, a federal grand jury indicted a cybersecurity lawyer with ties to the Democratic party named Michael Sussmann on charges that he lied to the FBI in a September 2016 meeting.

Back up: Remember the Trump-Russia investigation? The one that produced Robert Mueller, and which many believed would lead to the end of the Trump presidency? Right now, there is an investigation into the investigation, being led by a different Special Counsel: this one is a man named John Durham. Durham was appointed in 2019 by former Attorney General William Barr to look into the origins of the Russia investigation.

The investigation has been going on for more than two years, and is reportedly nearing its end. Many Trump allies have heralded Durham as the man who would finally prove there was some shady business in the investigation, but he is also a well-respected lawyer with little in the way of partisan ties — which makes whatever he uncovers all the more meaningful.

So what happened? On Thursday, an indictment came down alleging that Michael Sussmann, a high-profile cybersecurity lawyer, lied to the former FBI general counsel James Baker. Specifically, when Sussmann approached the FBI with a tip toward the end of the 2016 presidential race, he allegedly told the FBI he was not representing a client but coming forward as a citizen. According to the indictment, though, he was representing the Clinton campaign and a technology executive. During the meeting, Sussmann presented the FBI with evidence that a server belonging to the Russia-based Alfa Bank appeared to be communicating with Trump organization computers.

The allegation he made about the ties between Trump and Alfa Bank was eventually proven false, and didn't appear in Robert Mueller's report, but the beginning of an FBI investigation into those ties was widely reported in the media and damaging to Trump toward the end of the 2016 campaign.

Any other context? Yes. Sussmann is the second person who has been charged by Durham. The other was Kevin Clinesmith, a former low-level FBI attorney who was charged with doctoring an email that was used to get surveillance on Trump campaign adviser Carter Page. Clinesmith changed the email to say that Page was "not a source" for the Central Intelligence Agency, despite Page's cooperation with the CIA, so as to make his actions seem more suspicious and justify further surveillance.

The Trump-Russia probe did not prove a conspiracy between the campaign and Russia's efforts to interfere in the election, but it did result in convictions of a half dozen Trump advisers, including several who lied about contacts with Russian officials.

Sussmann denied the charges. “The special counsel appears to be using this indictment to advance a conspiracy theory he has chosen not to actually charge,” his lawyers said in a statement. “This case represents the opposite of everything the Department of Justice is supposed to stand for. Mr. Sussmann will fight this baseless and politically-inspired prosecution.”

Below, we'll take a look at reactions to this latest indictment from the right, left, and then "my take."

What the right is saying.

The right says the latest indictment confirms some of the suspicions about the dirty political tricks behind the Russia probe.

Holman W. Jenkins Jr. said Durham delivered on Russiagate.

"Whatever you hear on Twitter, this is a different kettle of fish from the after-the-fact lies charged by the Mueller task force against certain Trump campaign associates that, if they were lies at all, were incidental to the special counsel’s search for collusion crimes," Jenkins wrote. "Mr. Sussmann’s alleged lie, a charge he has now formally denied, would have been intended to spark an FBI investigation so the investigation’s existence could be leaked to the press on behalf of the Clinton campaign to influence a presidential election. If media reporters can’t see this, they aren’t trying very hard. The first sentence of the indictment filed by the Justice Department’s John Durham refers not to Mr. Sussmann or his allegations but to their appearance in the New York Times a week before Election Day.

"By now, the pattern is familiar thanks to the Steele dossier, which Mr. Sussmann’s firm also promoted," Jenkins wrote. "Unsupported allegations aren’t reportable; the existence of a federal investigation is. The FBI and the Justice Department have strong institutional interests in not being manipulated in this way and it’s tempting to interpret Mr. Durham’s indictment partly as a reminder to them of this... Mr. Durham is not disingenuous for leaving out what we can also readily suspect: The FBI knew on the spot Mr. Sussmann was lying. He was well-known to the agency as a former U.S. prosecutor specializing in cybercrime and as a lawyer for the Clinton campaign and Democratic Party."

The Wall Street Journal editorial board said Durham cracked the Russia case.

"The indictment adds new details about the sweeping nature of the Clinton campaign’s effort to falsely tag Donald Trump as in bed with the Russians," the board wrote. "The indictment says the Alfa bank allegations came via an unidentified tech executive ('Tech Executive-1'), who according to one of his emails expected to get the 'top [cybersecurity] job' in a Clinton Administration. The executive owned internet companies that had access to vast amounts of 'public and nonpublic' data. The exec was tipped to purported traffic between Alfa bank and a Trump email domain and alerted Mr. Sussmann... The executive ordered his employees to 'search and analyze their holdings of public and non public internet data for derogatory information on Trump.'

"These searches came up with little or nothing," the board added. "But the executive handed the innuendo to Mr. Sussmann, who wrote white papers he handed to the FBI and worked with Fusion GPS and Mr. [Marc] Elias to feed it to a credulous press corps. Mr. Sussmann’s meeting with the FBI’s Mr. Baker gave the media a hook to write that law enforcement was investigating the Trump-Russia ties. The FBI opened its probe into Mr. Trump, which cascaded into the collusion political frenzy that damaged the Trump Presidency for more than two years."

In Fox News, Jonathan Turley said the left wants to shut down the probe, but it needs to continue.

“Durham has been praised as an apolitical career prosecutor by both Democrats and Republicans,” Turley wrote. “Nevertheless, Democrats have long denounced the investigation, even as they demanded full support for Robert Mueller's investigation into the Russian collusion claims. It is the methodical reputation of Durham that makes him so dangerous. He is known for dogged pursuit of wrongdoing and no one has ever claimed that he is political or biased. I have referred to his investigation as an 'eephus,' a slow pitch, due to the impact of the pandemic and his decision not to move publicly before the election.

"Ironically, before the election, Democrats demanded that Durham slow down or stop any action," Turley added. "Mueller top aide, Andrew Weissmann, even called on prosecutors and investigators to refuse to assist Durham before the election. In reality, Durham decided that he would not act before the election even though it further delayed his investigation. Now the Washington Post and others are chastising him for waiting so long."

What the left is saying.

The left says the latest indictment is more evidence Durham has found very little evidence of a plot to damage Donald Trump.

Randall D. Eliason, a George Washington law professor, asked incredulously if this is "all" Durham's got.

"Donald Trump and his supporters expected Durham to blow the lid off a vast, 'deep state'/FBI conspiracy to bring Trump down," Eliason wrote. "But far from a legal bombshell, this indictment is more like a political pop gun. The 27-page indictment charges Sussmann with a single verbal false statement he allegedly made to the FBI general counsel in September 2016. Sussmann met with the FBI attorney to provide details about unusual Internet data potentially suggesting back-channel communications between the Trump organization and a Russian bank with ties to the Kremlin. During that meeting, Sussmann allegedly said he was not there on behalf of any client. In fact, the indictment charges, Sussmann was acting on behalf of two clients: an unnamed executive at a major tech company and the Hillary Clinton campaign.

"This is a remarkably weak case, both factually and legally," Eliason said. "The indictment doesn’t allege that the computer data itself was false or was doctored to implicate Trump. On the contrary, it says the various researchers recognized some weaknesses in the data and noted their clients were looking for a 'true story' that would bolster a narrative about Trump’s Russian ties. Nor was the FBI deceived about who Sussmann was. The indictment itself says the FBI knew Sussmann represented the Democratic National Committee and the Clinton campaign. But when he brought them computer data allegedly implicating Trump less than two months before the election, the FBI supposedly thought Sussmann was there simply as a 'good citizen' who had somehow stumbled across that information? If that’s really true, someone at the FBI should be indicted for aggravated naivete."

The Washington Post editorial board said this "is not the confirmation of some broad 2016 deep-state conspiracy against Mr. Trump."

"The danger of special counsel investigations is that, given unlimited time and resources, they often find some bad action tangentially related to their original inquiry that may have had little or no substantial negative impact," the board wrote. "Mr. Durham has uncovered alleged wrongdoing that has little to do with whether federal officials tried to sabotage the Trump campaign.

"Even if true, the Sussmann episode is far less alarming than the case of former national security adviser Michael Flynn, whom Mr. Barr moved to protect from punishment and Mr. Trump later pardoned," the board said. "Mr. Flynn admitted to lying to the FBI about his conversations with the Russian ambassador, an issue of central importance to the investigation of the Trump campaign’s connections to Russia. The consequences of Mr. Sussmann’s alleged lie are minimal by comparison... So far there are no indications he [Durham] has uncovered anything suggesting an illegitimate government plot to subvert the 2016 Trump campaign — or even that the Russia inquiry was unwarranted. That is because the facts already public proved long ago that there was ample reason for federal investigators to launch and pursue the Russia investigation."

In MSNBC, Barbara McQuade said Durham appears to be ending his work "not with a bang, but with a whimper."

“It is hard to see how the case Durham filed on Thursday against Washington lawyer Michael Sussmann meets Justice Department standards," McQuade said. "A grand jury only needs to find probable cause that a crime was committed to return an indictment, but DOJ policy requires a higher standard. Before putting a person through the expense, burden and stigma of criminal charges, a prosecutor should make a determination 'that the admissible evidence will probably be sufficient to obtain and sustain a conviction.' This case comes woefully short of that standard.

"Let’s start with the easy one — admissible evidence," she wrote. "The indictment appears to rely on the handwritten notes of an assistant director with whom Baker spoke after his meeting with Sussmann. The notes state, among other things, 'Said not doing this for any client.' Anyone who’s played the game 'Telephone' understands that as information is repeated, it often gets altered along the way. Instead, testimony at trial must be based on personal observation. If the prosecution attempted to offer these notes or even the writer’s testimony about what he heard Baker say before he wrote them as evidence, either would likely be ruled hearsay."

My take.

I have to say, I was a bit taken aback to read The Washington Post editorial board lament the "danger" of a special counsel investigation that "given unlimited time and resources," can "often find some bad action tangentially related to their original inquiry that may have had little or no substantial negative impact." That's precisely the argument many conservatives made about Robert Mueller's investigation, which turned up loads of tangentially related crimes that were successfully prosecuted (none of which I recall The Washington Post editorial board condemning).

This latest indictment, if it is proven true, would show that there were some classic dirty Washington D.C. politics at play in the early stages of the investigation into Trump. Surely, Sussmann and the Clinton campaign knew that the presence of an FBI investigation would be hugely damaging to Trump — and helping bring forth evidence to prompt such an investigation would help the Clinton campaign. That such evidence was fed to the FBI by someone on the Clinton campaign’s payroll is no small deal, especially when that evidence was later dismissed but the news of the investigation caused a tidal wave of bad press.

There are a few other important things at play here, though. For one, I don't actually see this indictment turning into a prosecution. McQuade made this case in compelling terms, but the short version is that there is one witness here — FBI General Counsel Jim Baker — and one piece of evidence: a note someone took from something Baker said after his meeting with Sussmann. That means in court, this will essentially turn into Baker's word against Sussmann's. Even then, Durham will be working with an iffy witness: in 2018, Baker told Congress that he didn't even recall whether Sussmann had represented himself as working on behalf of the Democratic party or Hillary Clinton.

It's also true, as Eliason says, that the FBI knew who Sussmann was. The idea that they would have treated the information he was passing to them differently had they known he was a Democratic lawyer is laughable. Frankly, if that's true, someone at the FBI should be fired. Sussmann was a high-profile lawyer working at a firm well-known for its work with the Clintons and Democrats. They knew precisely who he was, and would have known he was lying if he actually lied during the meeting with Baker.

All told: I'm leaning much more toward "ending with a whimper" than I am toward "cracking the Russia case." It’s likely Sussmann is a shady political actor, and this is a nice piece of insight into how these stories often make their way to the press. But when Durham was appointed, many Trump loyalists assured me — in interviews, on social media, in conversations over drinks — that this investigation would bring down the whole thing. Obama, Clinton, Jim Comey, the corrupt deep state. Durham was going to turn the rocks over and prove Trump was right all along.

So far, though, he's got one low-level lawyer on the hook for doctoring an email to continue monitoring Carter Page and another, well-known Democratic lawyer who is almost certainly going to evade prosecution for allegedly misrepresenting the capacity in which he was bringing forward evidence. And the evidence itself wasn't even deemed doctored or fraudulent — it just didn't turn up any smoking gun.

Does Durham have more? Could this be the tip of the iceberg? It's possible. And if he does I'll change my tune. But it seems increasingly unlikely every day. He's had over two years now, longer than the entire Mueller investigation into Trump, and so far I'm seeing some evidence of dirty campaign politics but not a whole lot of evidence of a deep, corrupt federal government using the intelligence agencies to derail Trump’s presidency.

We'll find out soon if there's more. But don’t hold your breath.

Your questions, answered.

Today's main story took up a lot of space, so we are skipping the reader question. But if you want to ask something to be answered in the newsletter, you can simply reply to this email or fill out this form.

A story that matters.

The first lawsuits against a doctor who performed an abortion have been filed in Texas. Dr. Alan Braid, a San Antonio doctor who admitted in a Washington Post column that he performed an abortion prohibited by the law earlier this month, has officially been sued in two separate lawsuits. However, the circumstances are bizarre: One of the plaintiffs says he's not opposed to abortion, and the other's lawsuit reportedly asks that the state's new abortion restrictions be ruled unconstitutional. Both of the plaintiffs who filed the lawsuits are disbarred lawyers, and Oscar Stilley — the plaintiff who said he is not opposed to abortion — openly described his motivation as wanting the $10,000 in damages or to find out if the new law can actually hold up in court. If the law is struck down because of his lawsuit, he would view it as a good thing. In other words: he sees the lawsuit as a win-win. The Texas Tribune has the story.


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