Here's the indictment
against Michael Sussmann.
Before I discuss it, a reminder about the context:
(1) The FBI launched an investigation into the Trump campaign's connections with Russia in July 2016 because a Trump campaign advisor, George Papadopoulos, had boasted in London to an Australian diplomat in May 2016, two months before
Democratic emails began to be leaked that summer, that Russia had stolen emails from the Democrats.
(2) Trump had been in negotiations with Russian entities since late 2015 about building a tower in Moscow -- a project that would have required the lifting of U.S. sanctions on Russia to move forward -- but he was telling the American public that he had no business dealings with Russia.
(3) Trump's campaign manager in August 2016 gave sensitive campaign data to a Russian spy.
(4) Trump's son, son-in-law, and campaign manager in June 2016 had taken a meeting with someone they believed to be a representative of the Russian government offering supposedly damaging information on Hillary Clinton, and in that meeting they agreed to revisit the question of U.S. sanctions on Russia if Trump was elected to the presidency.
Almost none of the above was known publicly until 2017; items 2, 3, and 4 weren't even known to the FBI
until 2017. All that was known publicly in 2016 was that (1) Russia had apparently stolen Democratic emails and Wikileaks was releasing those emails in an apparent effort to hurt the Clinton campaign and (2) Donald Trump had made a number of positive statements about Russia and Putin and had publicly encouraged Russia to locate Hillary Clinton's emails. But it was perfectly reasonable to be suspicious about Donald Trump's connections to Russia.
The goal of John Durham's investigation (which has lasted six months longer than Robert Mueller's investigation), and of the new indictment, seems to be to suggest that the FBI investigation into the Trump campaign was launched under false pretenses. But here's what it says:
In September 2016, Michael Sussmann, a Perkins Coie lawyer who worked for a big tech company executive and for the Hillary Clinton campaign, among others, first went to the media, and then went to the FBI with what he claimed was evidence, provided to him by tech researchers, that there was potentially suspicious activity between a server in Trump Tower and a server at Alfa Bank, a Russian bank with ties to the Kremlin: the Trump Tower server pinged the Alfa Bank server about 2,700 times over three months in spring-summer 2016. The evidence was real, but even the researchers who assembled it weren't sure what it actually meant. The FBI began to investigate. Eventually the FBI determined that the Trump Tower server was actually owned by a telemarketing firm that regularly sent out advertising messages on behalf of the Trump Organization and numerous other companies. (Mind you, there's never been a clear explanation for why they'd spam a Russian bank. Personally I think it's possible that it happened as part of a deliberate disinformation campaign to undermine the investigations into actual connections between Russia and Trump, but who knows.) News of the investigation leaked in late October 2016, although the articles that resulted were a mixed bag if the goal had been to hurt Trump's electoral chances: the most prominent story that referenced the case said that the FBI hadn't been able to identify any suspicious connections between Trump and Russia.
The indictment claims that Sussmann told the FBI that he wasn't working for any client. The indictment's evidence for this is that after Sussmann spoke to the FBI, the FBI agent he spoke with -- who now says he doesn't remember if Sussmann told him he whether or not he was there representing a client -- talked to another FBI agent about the meeting, and that second agent, who was not in the first meeting, took notes about the second meeting, in which he wrote:
Michael Sussman - Atty: Perkins Coie -- said not doing this for any client
- Represents DNC, Clinton Foundation, etc.
- Been approached by Prominent Cyber People (Academic or Corp. POCs)
---People like: [three names redacted in inidctment]
But in fact, the indictment says, Sussmann was representing the tech executive, who had led an effort to seek out derogatory information about Trump, and the Clinton campaign, which Sussmann had repeatedly apprised concerning the information provided to him by the tech executive about what he had learned. And a few months later, after the election, Sussmann approached employees of a different U.S. agency and told them that he had more information about the server that he was disseminating at the behest of his client. Then later still, when Sussmann testified under oath to Congress, he said that he went to the FBI "on behalf of my client." Thus, the indictment claims, Sussmann lied by telling the FBI that he wasn't there on behalf of a client.
If in fact, that's what he told the FBI.
And Sussmann's supposed lie is material, the indictment claims, because if the FBI had known that Sussmann might have political motives, they would have treated the information he brought with more skepticism.
If this goes to court, isn't it Sussmann's word against that of someone who wasn't even there? Doesn't it play out essentially like this?
Q: Did Sussmann tell the FBI that he was representing a client?
Agent #1: I don't remember.
Agent #2: I wasn't there, but Agent #1 said he didn't.
Susssmann's attorney: Objection: hearsay.
Judge: Sustained. Case dismissed.
On top of which, given that agent #2 wrote that Sussmann worked for the Democrats and the Clintons, it's really hard to claim that the poor ignorant FBI would have acted differently if only they knew that Sussmann might have political motives.
What's more, the indictment quotes the tech executive as saying to his researchers, prior to sharing the information with Sussman, that they were "looking for a true story that could be used as the basis for closer examination." So they explicitly didn't want to bring information to the press or the FBI unless they believed it was real.
I get that, as the saying goes, "You can beat the rap but you can't beat the ride," and Sussmann may, as Voronwë anticipates, plead out just to avoid wasting a year of his life, but it's not at all clear to me that he ever lied in the first place, and it's even less clear that if he did lie, that it was material.