In a Monday night filing, Durham revealed that he has an incriminating statement by Sussmann that dramatically undermined his defense. In the text message, Sussmann denied that he was representing anyone before his critical meeting with the FBI. He then repeated the false statement in that meeting as he pushed a false Russian collusion claim against Donald Trump.
Sussmann has been seeking the dismissal on the single charge under 18 U.S.C. 1001 for lying to the FBI in a meeting with the then-FBI General Counsel James Baker.
In the indictment, Sussmann is accused of “mak[ing] a materially false, fictitious, and fraudulent statement or representation” in conversations with Baker. Durham argued that “the defendant provided the FBI General Counsel with purported data and ‘white papers’ that allegedly demonstrated a covert communications channel between the Trump Organization and a Russia-based bank.”
That institution was Alfa Bank and Sussmann’s effort paralleled the work of his partner at the law firm Perkins Coie, Marc Elias, in pushing the Steele Dossier in a separate debunked collusion claim. The FEC recently fined the Clinton Campaign and the DNC for hiding the funding of the dossier as a legal cost by Elias at Perkins Coie.
The Clinton Campaign’s Alfa Bank conspiracy was found to be baseless but the FBI did not know that it was being offered by someone being paid by the campaign to spread the claim. Had they known, Durham alleges the department might have been able to avoid the investigation costs and effort spent on the Alfa matter.
Sussmann has sounded a lot like Michael Flynn in court as he argued that this was trivial and inconsequential comment. On Monday night, Durham lowered the boom. He revealed that, before the meeting, Sussmann sent “the same lie in writing” that his effort was “not on behalf of a client or company.”
Durham is seeking the introduction of a text message to Baker that said:
“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.”
Thus, Durham writes that
“on September 18, 2016 at 7:24 p.m., i.e., the night before the defendant met with the General Counsel, the defendant conveyed the same lie in writing and sent the following text message to the General Counsel’s personal cellphone.”
The filing is particularly notable after the FEC sanctions for hiding the Clinton Campaign’s funding of the Steele Dossier.
During the campaign, a few reporters did ask about the possible connection to the campaign, but Clinton campaign officials denied any involvement. It was only weeks after the election that journalists discovered that the Clinton campaign hid payments for the Steele dossier as “legal fees” among the $5.6 million paid to Perkins Coie.
New York Times reporter Ken Vogel said at the time that Elias denied involvement in the anti-Trump dossier. When Vogel tried to report the story, he said, Elias “pushed back vigorously, saying ‘You (or your sources) are wrong.’” Times reporter Maggie Haberman declared, “Folks involved in funding this lied about it, and with sanctimony, for a year.”
“It was not just reporters who asked the Clinton campaign about its role in the Steele dossier. John Podesta, Clinton’s campaign chairman, was questioned by Congress and denied categorically any contractual agreement with Fusion GPS. Sitting beside him was Elias, who reportedly said nothing to correct the misleading information given to Congress.”
The text message greatly strengthens the case by undermining the argument that Sussmann’s concealment of the role of the Clinton Campaign was a single mistake or “one-off” occurrence. This could be used to show intent as part of a pattern of deceit.
Notably, the filings state that
“The defendant’s billing records reflect that the defendant repeatedly billed the Clinton Campaign for his work on the Russian Bank-1 allegations. In compiling and disseminating these allegations, the defendant and Tech Executive-1 also had met and communicated with another law partner at Law Firm-1 who was then serving as General Counsel to the Clinton Campaign (“Campaign Lawyer-1″).”
“Campaign Lawyer-1” is a reference to Marc Elias, Sussmann’s partner at Perkins Coie who is accused to concealing the same connections with the Steele Dossier during the campaign.
Sussmann’s trial is scheduled to begin on May 16.