With the jury out in the trial of former 2016 Clinton campaign counsel Michael Sussmann, the usual odds-takers appeared on cable news, rating the chances of a conviction. Despite the seemingly overwhelming evidence against Sussmann, the jury’s makeup seems strikingly favorable for the defense.
One verdict, however, appears to need little deliberation. It concerns the Department of Justice, and particularly the FBI. The trial confirmed what many have long alleged about how top officials eagerly accepted any Russia collusion claim involving former President Trump’s 2016 campaign. Special counsel John Durham’s investigation, which led to Sussmann’s trial, is an indictment of a department and a bureau which, once again, appeared willfully blind as they were played by Hillary Clinton’s campaign.
Despite the trial judge’s rulings imposing strict limits on the scope of the trial evidence, Durham’s case still revealed new information on how the Russia collusion theory was pushed into the FBI and the media by the Clinton campaign. Perhaps the most ironic moment came when Sussmann’s defense team outed Clinton as personally approving the campaign’s effort to spread the claim that the Trump organization maintained a secret channel to the Kremlin through Russia’s Alfa Bank.
That claim turned out to be a real tinfoil-hat conspiracy theory without support. Durham previously disclosed how researchers tasked with supporting the claim were afraid it was so unsupported that they would be mocked. They argued, according to Sussmann’s indictment, that anyone familiar with analyzing internet traffic “would poke several holes” in the theory. One researcher warned: “Let’s assume again that they are not smart enough to refute our ‘best case scenario.’ You do realize that we will have to expose every trick we have in our bag to even make a very weak association.”
Yet, the Clinton campaign did not seem remotely concerned about even minimal inquiries that might expose the lack of proof. The researchers were told to just create a “very useful narrative.”
During the trial, Clinton campaign general counsel Marc Elias and campaign manager Robby Mook both said the campaign trusted the media more than the FBI to run with the story. They were right: Slate quickly ran it, and then Clinton and one of her aides, Jake Sullivan (now President Biden’s national security adviser), released statements expressing alarm about the claim as if it were news to them.
The Clinton campaign similarly pushed the infamous Steele dossier into the news, too, after secretly helping to fund it. And both the Steele dossier and the Alfa Bank claim were pushed to friends in the FBI.
Regardless of what the jury decides regarding Sussmann, the combined record of the Steele dossier and the Alfa Bank claim makes certain echelons within FBI look like the equivalent of unindicted co-conspirators.
On the witness stand in Sussmann’s trial, for example, FBI general counsel James Baker was asked why it took him so long to turn over the most damaging evidence — a text message to him in which Sussmann said he was not representing any client in pushing the Alfa Bank claim to FBI officials. Baker explained that Sussmann was his friend and told prosecutors that “this is not my investigation. It’s yours.” In other words, there was no reason for the Justice Department to expect that Baker, a former top Justice lawyer, would help to make the case against Sussmann.
Later, the supervisory agent for the FBI’s Trump-Russia probe, Joe Pientka, sent a note to FBI special agent Curtis Heide, stating: “People on 7th floor to include Director are fired up about this server.” Pientka then messaged Heide making sure a case had been opened: “Reachout and put tools on … it’s not an option — we must do it.”
That description of the apparent eagerness of then-FBI Director James Comey and others only magnifies concern over the bureau’s alleged bias or predisposition on the Trump investigation. That same eagerness led the FBI to pursue the Russia investigation for years despite being warned early by U.S. intelligence that the Steele dossier contained not just unsupported allegations but possible Russian disinformation.
When FBI investigators were given Sussmann’s allegation, they were told by supervisors that it came from the Justice Department, not Sussmann. Even with that framing, however, investigators found what the Clinton campaign researchers feared — in Baker’s words, that there was “nothing there.”
The FBI, however, went on to pursue the other Russia collusion claims. That effort would result in a conviction of FBI attorney Kevin Clinesmith for making false statements by altering key evidence to obtain secret surveillance orders against Trump associate Carter Page. Another trial witness, the FBI’s Heide, admitted he is under investigation for allegedly withholding exculpatory information contradicting the premise of the Russia investigation.
Previously, of course, another special counsel, Robert Mueller, never found any basis for criminal charges related to Russia collusion. But what is now even more striking is how so much of this information about “fired up” FBI officials and the role of the Clinton campaign mysteriously escaped Mueller and his team.
The question now is whether Durham will be given the same opportunity as Mueller to write a report on his findings. All of these disclosures were made despite limitations placed on Durham by the court. Clearly, Durham is sitting on more information about how the collusion claims were packaged and pushed to friends in the media and the FBI.
Before Mueller declined to press criminal charges on any Russia collusion allegations, Democrats in Congress insisted that he should not just issue a report but that the report should be released unredacted, including ordinarily secret grand jury material.
There is no such hue and cry for a similarly unredacted report by Durham.
If Durham does not issue such a report, much of the true story behind the Russia collusion scandal could be buried. Indeed, even if control of Congress were to flip to Republicans in November, the Justice Department could refuse to turn over investigatory material and information. That is precisely what many in Washington undoubtedly would like to happen.
Yet, after the glimpses offered in the Sussmann prosecution of still undisclosed evidence, the public deserves to have a full Durham report on how these scandals were conceived and crafted among “friends.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.