Durham, Sussmann Trial: much more than it seems. Criminal Conspiracy. (#1 of 3)

Article #1 of 3 on the Sussmann Trial

On May 16, the trial of Michael Sussmann has begun. We now have the transcripts of the first 5 days of the trial, and we can paint a picture on the case. For the Durham Team this is much more than just winning a conviction of Michael Sussmann for “lying to the FBI”. The Durham Team is using the Sussmann trial to introduce evidence on record to lay out the framework of a “Criminal Conspiracy”.

In the last seven days I have examined and analyzed hundreds of pages of witnesses testimony, and dozens of documents filed as evidence, and the pattern is absolutely clear.

But let’s start from the beginning.
On Day 1 we had the selection of the Jury. On Day 2 the proper trial began, with the opening arguments for the Durham Team and for the Defense.

The Durham Team is represented by:

• John Durham, Special Counsel

• Brittain Shaw

• Andrew DeFilippis

• Jonathan Algor

• Michael Keilty

The opening statement for the Durham Team was presented by Brittain Shaw, and she made an excellent opening argument, very powerful, clear, and straightforward:

Brittain Shaw:
The evidence will show that this is a case about privilege: the privilege of a well-connected D.C. lawyer with access to the highest levels of the FBI; the privilege of a lawyer who thought that he could lie to the FBI without consequences; the privilege of a lawyer who thought that for the powerful the normal rules didn't apply, that he could use the FBI as a political tool.

Ms. Brittain Shaw continues:

Ladies and gentlemen of the jury, on September 19, 2016, the defendant, Michael Sussmann, a high-powered D.C. lawyer, went to the FBI bringing serious allegations about a presidential candidate on the eve of the election, serious allegations about secret communications with a foreign adversary.

But when the defendant walked into FBI headquarters on Pennsylvania Avenue, the evidence will show that he bypassed normal channels.
He went straight to the FBI general counsel's office, the FBI's top lawyer.
He then sat across from that lawyer and lied to him.

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The Lie

What was the lie?
The defendant told the FBI general counsel that he was bringing them information about a presidential candidate on his own, not on behalf of any client, but as a good citizen.

But the evidence will show that that wasn't true.

The defendant wasn't there as a concerned citizen.
He was doing it not for one client, but for two: the opposing presidential campaign and an Internet executive.

The defendant lied to direct the power and resources of the FBI to his own ends and to serve the agendas of his clients.

All the while, ladies and gentlemen, the evidence will show that the defendant was billing his time on this project to the Hillary Clinton Campaign.

You will see the billing records that show that instead of being a good citizen, the defendant was billing his time to a client.
The Hillary Clinton Campaign was footing the bills.

And so when the defendant walked these allegations into the FBI and said he wasn't doing this for any client, that was false.
It was false because the defendant personally billed his time to the Hillary Clinton Campaign, and it was false because he was also bringing these allegations on behalf of his other client, Rodney Joffe.

So what will the evidence show?
The evidence will show that defendant's lie was all part of a bigger plan, a plan that the defendant carried out in concert with two clients, the Hillary Clinton Campaign and Internet executive Rodney Joffe.

It was a plan to create an October surprise on the eve of the presidential election, a plan that used and manipulated the FBI, a plan that the defendant hoped would trigger negative news stories and cause an FBI investigation, a plan that largely succeeded.

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Very powerful opening statement by Brittain Shaw.

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The most important testimony in the trial came from James Baker, who was the Top Lawyer at the FBI, the General Counsel of the FBI, in 2016.
James Baker said that he and Michael Sussmann were friends, and they knew each other since the time when they both worked at the DOJ.

On September 18, 2016, at 7:24 pm, James Baker receives a text message from Michael Sussmann. It is remarkable that it was a Sunday.
This is the Sussmann text message, verbatim:

"Jim, it's Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. Do you have availability for a short meeting tomorrow?
I'm coming on my own - not on behalf of a client or company - want to help the Bureau. Thanks."

I have highlighted in bold the most important part of the text message:
”I'm coming on my own - not on behalf of a client or company”.
The Sussmann text message has been entered as evidence by the Durham Team.

This is an excerpt of James Baker testimony on May 18, 2022, questioned by the Durham Team lawyer, Andrew DeFilippis:

James Baker: it's a message that I received on September 18th, 2016, at 7:24 p.m.

DeFilippis (Durham Team): And when you received this message, what was your reaction to it?

James Baker: I was a bit surprised to get it from Michael (Sussmann). I kind of wondered how he got my personal cell phone number.

Andrew DeFilippis (Durham Team): what made you willing to schedule something for the next day?

James Baker: I knew Michael (Sussmann) and had high regard for him, and from the text and from the context and the text of the message, it seemed urgent and important, and so I trusted that if Michael needed to see me right away and in the way he described it here as being time-sensitive and sensitive, I thought I should try to meet with him as soon as possible.
And my schedule allowed for me to meet with him the following day, so that's what I did. That's what I told him, that I could do that.

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The meeting between James Baker and Michael Sussmann took place the day after the text message, on September 19, 2016.
Let us read another excerpt from the testimony of James Baker:

Andrew DeFilippis (Durham Team): Where did the meeting happen?

James Baker: The meeting took place in my personal office.

Andrew DeFilippis (Durham Team): When Mr. Sussmann came in, did he have anything with him?

James Baker: Yes. He had some written materials and some electronic media with him.

Andrew DeFilippis (Durham Team): And so how did the meeting begin? What happened?

James Baker: Michael (Sussmann) started to explain why he was there. He said that he was not appearing before me on behalf of any particular client, and that he had some information that was of concern relating to an apparent surreptitious communications channel between something called Alfa-Bank, which he described as being connected to the Kremlin in Russia, and some part of the Trump organization in the United States.
And it looked, according to some cyber security researchers that he was in contact with, as if it were, again, some surreptitious way for those two entities to communicate with each other.

Andrew DeFilippis (Durham Team) shows again to James Baker the text message he received from Sussmann the day before:

"Jim, it's Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. Do you have availability for a short meeting tomorrow? I'm coming on my own - not on behalf of a client or company - want to help the Bureau. Thanks."

From James Baker testimony:

Andrew DeFilippis (Durham Team): Mr. Baker, you'll recall that this is the message Mr. Sussmann sent you the night before. Is it your testimony that he repeated that statement in the meeting with you?

James Baker: In essence. I believe in the meeting Mr. Sussmann said "I'm not here on behalf of any particular client."

Andrew DeFilippis: and how confident, Mr. Baker, are you that he said that, repeated that, in the meeting?

James Baker: I'm 100 percent confident that he said that in the meeting.

Boom!
Michael Sussmann lied to the FBI.

The Durham Team has solid proof that Michael Sussmann met the General Counsel of the FBI, James Baker, on behalf the Hillary Clinton campaign.
During the examination of Marc Elias, Sussmann colleague at the law firm Perkins Coie, Andrew DeFilippis showed Marc Elias a number of billing records of Perkins Coie, for work that Sussmann billed to the Hillary Clinton campaign.
The Sussmann billing records are dated: July 29, 2016, August 12; August 17; August 19; September 17, 2016. All these billing records refer to work that Sussmann did on the Alfa Bank matter on behalf of the Hillary Clinton campaign.
Yet, during the meeting with James Baker, General Counsel of the FBI, Michael Sussmann lied, stating clearly that "I'm here on my own, not on behalf of any client".

The Durham Team entered all those Sussmann bills into evidence at the trial.
Andrew DeFilippis entered into evidence also a number of Perkins Coie calendar invites referring to meetings, emails and phone calls that Sussmann had with Marc Elias, Rodney Joffe, and others, related to the Alfa Bank matter. These calendar invites are related to the aforementioned bills that Michael Sussmann charged to the Hillary Clinton campaign.

From the billing records we learn that Sussmann fee in 2016 was $835/hour.
The bills that Sussmann charged to the Hillary Clinton campaign report these amounts:
$1,252.50
$417.50
$2,755.50
$4,008.00

Special Counsel John Durham and his Team have subpoena power, and they obtained these billing records directly from Perkins Coie, as well as the calendar invites, emails, documents and phone records. This gives a glimpse on how much hard evidence the Durham Team has acquired during the entire investigation, and the huge amount of work that John Durham and his Team have done to put all the pieces of the puzzle together.

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After James Baker testified that in the September 19 meeting Sussmann said "I'm not here on behalf of any particular client", Andrew DeFilippis doubled down:

Andrew DeFilippis (Durham Team): And when Mr. Sussmann said that, Mr. Baker, what impression did it have on you? How did you respond?

James Baker: Michael (Sussmann) is a friend of mine and a colleague, and I believed it and trusted that the statement was truthful.

Andrew DeFilippis (Durham Team): and where it says in the text message the night before "Want to help the Bureau," when you read that the night before, what did you understand that to mean?

James Baker: that he was coming to see me as a good citizen who had obtained some information that he wanted to share with me.

James Baker adds: Again, from the text of this, I literally had no idea what he was coming to see me about, what the subject matter was at all. But knowing Michael, I would expect him -- if he had information, as a citizen, I think he would want to help the government. That's the kind of person that I thought him to be.

Andrew DeFilippis (Durham Team): and when Mr. Sussmann repeated that statement in the meeting, did you come away with the same impression, that he was acting as a good citizen?

James Baker: Yes.

One thing I noticed by reading the transcripts is that James Baker has been very forthcoming and very cooperative with the Durham Team.
And this surprised me, considering that James Baker was the General Counsel, the Top lawyer of the FBI in 2016, when all this mess against Donald Trump unfolded.

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In a following part of the interview, Andrew DeFilippis focused on the Alfa Bank matter.

Andrew DeFilippis (Durham Team): Now, in connection with these allegations, you said Mr. Sussmann described allegations of a secret communications channel between the Trump organization and a Russian bank. What, if anything, did Sussmann say about where he had gotten these allegations?

James Baker: He said -- to the best of my recollection, Mr. Sussmann said that he had been in contact with or approached by some cyber security experts that he said he was not going to identify.

Scott Hellman is an FBI Special Agent in cyber crime.
Nate Batty was an FBI colleague of Scott Hellman, and his supervisor at the FBI Cyber Division.

The material provided by Mr. Sussmann to James Baker consisted of a paper and two thumb drives. Scott Hellman and Nate Batty analyzed the white paper and the thumb drives given by Michael Sussmann to James Baker.

From their analysis, FBI Special Agent Scott Hellman and Nate Batty determined that the claim was bogus, totally made up. The material provided by Sussmann did not show any “secret communication channel between Trump and Russia”.
The server of the Trump Organization was a server used to send marketing material.

FBI Special Agent Scott Hellman and Nate Batty wrote an official FBI Report on their analysis of the material provided by Sussmann to James Baker.
The title of the FBI Report was: "Assessment of the provided white paper and supporting document on (2) thumb drives”.
Specifically, in their report FBI Special Agent Scott Hellman and Nate Batty wrote that “The research conducted in the report reveals some questionable investigative steps taken and conclusion drawn.”

How long did it take to FBI Special Agent Scott Hellman and Nate Batty to determine that the material provided by Michael Sussmann was just a pile of garbage?
One day.

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During the testimony of FBI Special Agent Scott Hellman, Andrew DeFilippis of the Durham Team asked:

Andrew DeFilippis (Durham Team): And what did your analysis, generally speaking, find?

FBI Agent Scott Hellman: We did not agree with the conclusion in the paper (the Sussmann material). We did not agree that this data represented the finding of a secret channel of communication between the Trump organization and Russia.

Andrew DeFilippis (Durham Team): What were some of the reasons for that?

FBI Agent Scott Hellman: First, I felt that whoever had written that paper (the Sussmann material) had jumped to some conclusions that were not supported by the technical data.
Number two, I felt that the methodology that they used to do their analysis was questionable to me, or it was not a way that I would have chosen to do it and felt like it was a roundabout way to go about doing it, so it was questionable.

So, what Michael Sussmann had provided to James Baker was a pile of garbage.

Bottom line: the Sussmann claim that “there was a secret communications channel between the Trump organization and a Russian bank connected to the Kremlin” was all made up, totally bogus. In other words, it was a Fraud. A Fraud to the FBI.

James Baker himself confirmed in his testimony that the Sussmann material was a pile of garbage:

James Baker: The FBI view of the information at that point in time was that the data that we had from the cyber security researchers that Mr. Sussmann had given me, plus whatever investigative steps we were able to undertake, did not reveal that there was some type of surreptitious communications channel between Alfa-Bank and the Trump organization. We concluded there was no substance.

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Now let's go back to the examination of James Baker. There are other remarks that are very interesting.

Andrew DeFilippis (Durham Team): So just to be clear, based on what Mr. Sussmann said during the meeting, did you think he was there seeing you on behalf of the DNC?

James Baker: No.

Andrew DeFilippis (Durham Team): And just to be clear, based on what he said in the meeting, did you think he was there to see you on behalf of the Hillary Clinton Campaign?

James Baker: No.

Andrew DeFilippis: Why?

James Baker: Because he said he wasn't. In the text message that we have and also in his statement to me, he said he was not there on behalf of any client.

Not only Sussmann lied to the FBI, he deceived his friend and former colleague James Baker.

Special Prosecutor John Durham arrives at the Sussmann Trial on May 16

From the transcript of May 19, afternoon session, page 25:

Andrew DeFilippis (Durham Team): Mr. Baker, I want to go back to your September 19, 2016 meeting with Mr. Sussmann and ask you, if you knew that Mr. Sussmann were at that meeting for a client, would that have mattered to you?

James Baker: Yes.

Andrew DeFilippis: Why?

James Baker: Well, it -- multiple -- I think there's multiple dimensions to this.
So one would be, with respect to the logistics of the meeting, like was I going -- would I meet with Michael alone?
Would I meet with him with somebody else?
Would I not meet with him at all, depending on who the client was?
It would make me think about the -- how I would assess the reliability of the information that he was conveying, depending -- the identity of the client might impact my assessment of that. It might impact how I thought about whether and how we should prioritize the work on the information that he gave us. It would cause me to think deeply about that.
And then it would also, I think, make me think about the extent to which I needed to have my team of lawyers conduct a legal review of the material that was being presented to us. In other words, I was willing to meet with Michael alone because I had high confidence in him and trust. And that might have -- I think I would have made a different decision and a different assessment if he had said that he was appearing on behalf of a client.

Andrew DeFilippis (Durham Team): So let's break that down a little bit, Mr. Baker.
If Mr. Sussmann had texted you and said he wanted to come meet you for some work he was doing on behalf of the Clinton campaign, would you have taken the meeting?

James Baker: I don't think I would have.

Andrew DeFilippis: Why?

James Baker: Well, because the Clinton campaign -- well, former Secretary of State Clinton had been under investigation by the FBI with respect to her emails for a long period of time.
And by that point in time, in September, we had not technically closed the investigation, but we had completed our work as we had announced publicly, FBI Director James Comey announced publicly.
But there was still a team of agents that were working on the matter.
The matter, to my recollection, was still open and, as everybody knows, we eventually did reopen the case. So I think I would have said, I think you need to meet with -- first of all, you shouldn't meet with me.
You should -- if you have information you want to bring us, you should meet with the case agents associated with the Hillary Clinton email investigation, referred to as Midyear Exam. So I think you should meet with the Midyear-Exam folks.
If you're meeting on behalf of Hillary Clinton, I don't think you should come to see me.

Very clear statement from James Baker. And very important in the case against Michael Sussmann.

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From the transcript of May 19, afternoon session, page 28:

Andrew DeFilippis (Durham Team): How common or uncommon is it for the General Counsel (of the FBI) to receive evidence directly?
Is that something you did often?

James Baker: That's not common, no. As I mentioned earlier, no.

Andrew DeFilippis (Durham Team): When you said you might have had others join you in the meeting, would it have been just lawyers or might have you included non-lawyers as well?

James Baker: I might have included agents. I mean -- again, if he was coming in on behalf of a client, I think initially I would have asked more questions about -- What is this all about? What's going on?
Why do you want to meet with me?
Who else should I bring with me? Should I bring agents?
Should I bring other lawyers?
Like -- just, what is the nature and scope of what it is you're talking about?

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And this part is especially important:
From the transcript of May 20, morning session, page 56:

Andrew DeFilippis (Durham Team): Did Michael Sussmann say anything in the meeting of September 19, 2016, about whether the person who drafted these papers or a person who drafted these papers was billing that time to the Clinton Campaign?

James Baker: He said nothing about that.

Andrew DeFilippis (Durham Team): If you were to learn that one or more of the persons who drafted the papers that you received was billing that time to the Clinton Campaign, would that have mattered to you?

James Baker: Absolutely, yes.

Andrew DeFilippis: in what ways?

James Baker: Because it would have concerned me greatly about whether the materials were accurate, whether they were reliable, whether they were credible.
It would have concerned me whether there was an effort to play the FBI and drag us into some kind of a political -- into the ongoing political campaign and make us a pawn in the campaign in some fashion.

It would have alarmed me, I think, about the -- this nexus with the press and whether there was some effort to engineer a situation where the FBI would be investigating this material; and that the press, even though it couldn't determine the reliability of the material and wouldn't report on it, could report on the fact that, well, the FBI is investigating it.
So that would have concerned me greatly, again, whether the FBI was being played.

I would have been concerned about the legality of the material.
Where did it come from? What was the origin of it?
So I would have wanted to make sure that our teams slowed down and did a review of where that material came from and had a solid understanding of that before we ingested it into FBI investigative files and potentially contaminated those files with something that was unlawfully obtained.
So I would have changed my assessment of the reliability and credibility of the information. It would have changed my prioritization of the information within the FBI, because obviously if I'm -- as the general counsel, if I'm asking other parts of the FBI to do something, they're going to take that seriously, and they're going to respond with, you know, a higher level of concern because it's coming from the FBI General Counsel.

Andrew DeFilippis (Durham Team): Did Mr. Sussmann mention in his meeting with you an entity or organization called Fusion GPS?

James Baker: No.

Andrew DeFilippis: did Mr. Sussmann ever say, during your meeting or any subsequent communications you had with him, that Fusion GPS drafted one of the white papers that he gave to you?

James Baker: to the best of my recollection, he never told me that.

Andrew DeFilippis: If you were to learn that Fusion GPS, while being paid by the Clinton Campaign, had drafted one of the papers that Mr. Sussmann handed to you, would that have mattered to you?

James Baker: Absolutely, yes.

Andrew DeFilippis: in what respect?

James Baker: Well, it's sort of the same thing as I've described before.
It's coming from a political opposition research organization, and so I would have questioned the credibility and reliability of the information.
I would have been worried about the legality of the information; again, whether it was lawfully obtained. And I would have worried about the press connection, the fact that it was being mentioned that the press had some part of this information and whether the FBI was, again, being pulled into some type of political agenda, political ploy.
And so I would have -- I think I would have been very concerned about that and raised all of those concerns, both with the Fusion GPS question you're asking me now and the one I just answered a minute ago about the Hillary Clinton case.
I would have had serious conversations with the senior leadership of the FBI about what, if anything, to do with this material and how to handle it.

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The James Baker testimony is of utter importance in the Sussmann case.
But the main goal of the Durham Team is not just to obtain a conviction of the Hillary Clinton lawyer Michael Sussmann for one count of “Lying to the FBI”. That is a secondary objective. The main goal of the Durham Team is to use the Sussmann Trial to introduce on record evidence and testimony to prove a Criminal Conspiracy.
The Durham Team lawyers themselves have used several times in their filings the terms “joint venture” and “coordinated effort”.
And what is a “joint venture” when it involves committing crimes?
A Criminal Conspiracy.

There is much more to be said about the Sussman Trial, and about the Criminal Conspiracy. The evidence presented by the Durham Team and the witnesses testimony is “overkill” to just indict Michael Sussmann of lying to the FBI.
Besides: since the allegations about the Trump-Alfa Bank were bogus, they were a Fraud, aren’t Michael Sussmann, Rodney Joffe and their co-conspirators also guilty of “Conspiracy to Defraud the Government”?

This is article #1 of a series of 3 articles I am publishing on the Sussmann Trial.
The next articles will be published in the following days, reporting about the testimonies of Marc Elias, top lawyer of Perkins Coie, Robby Mook, campaign manager of the 2016 Hillary Clinton campaign, Deborah Fine, Deputy General Counsel of the Hillary Clinton campaign, FBI Agent Ryan Gaynor, former CIA officers Mark Chadason and Kevin P.

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