Special Counsel John Durham was tasked with investigating the origins of the FBI’s Russia investigation. He now appears to have ended 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. The indictment alleges that Sussmann met with FBI General Counsel Jim Baker in September 2016 to provide information about connections between a Russian bank and the Trump Organization. The FBI was unable to substantiate any links between Alfa Bank and former President Donald Trump’s businesses, but the charge against Sussman — making false statements to the FBI — doesn’t allege that the substance of the information was false. Instead, Sussman is accused of having misrepresented on whose behalf he was providing it.
It is hard to see how the case Durham filed on Thursday against Washington lawyer Michael Sussman meets Justice Department standards.
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. 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.
The case is equally weak on the merits. Although making false statements to an FBI agent is a serious crime, the government must be able to prove each and every element of the offense. Here, at least two of the five elements cannot be met.
First, Sussmann maintains that he did not make the statement. Many defendants deny misconduct, but this time it may work. In most false statement cases, the precise language of the statement at issue is memorialized in some way — the transcript of testimony under oath, a written submission, or a recorded oral statement. If not, the federal agency will usually provide two or more witnesses who personally heard the statement. Here, it appears that the whole case is built on the testimony of one witness, Baker. And in a he said, he said faceoff, the ties goes to the defendant.
In addition, it is not clear that Baker will be a strong — or even willing — witness. In a closed-door meeting with Congress in 2018, Baker testified that he did not recall whether Sussmann had represented himself as working on behalf of the Democratic Party or Hillary Clinton’s presidential campaign. Hardly the star witness needed to convict in the absence of all other evidence.
Although making false statements to an FBI agent is a serious crime, the government must be able to prove each and every element of the offense.
Even assuming the prosecution can prove that the statement was false, that Sussmann knowingly lied and that the crime is in the FBI’s jurisdiction, it still cannot establish materiality. The materiality element requires a showing that the statement could influence a matter under consideration; not every false statement is a crime, only those that matter. If Sussmann had also bragged to Baker, say, that he runs a six-minute mile, but in fact, he runs a ten-minute mile, that statement might be false, but it would not be material to the matter at issue.
Here, the indictment alleges that Sussmann’s statement that he was not acting on behalf of any client was material because if the FBI had known that Sussmann was providing the information on behalf of the Clinton campaign, it would have treated the information differently. But this allegation is refuted by its own witness. In his 2018 congressional testimony, Baker was asked whether it would have mattered if Sussmann had told him he was there on behalf of the Clinton Campaign. He said it wouldn’t, a devastating admission for Durham’s case.
What’s more, Sussmann worked at the Perkins Coie law firm, whose representation of the Clinton campaign was publicly known. And based on the assistant director’s notes, it appears that Sussmann did tell Baker that he “represents DNC, Clinton Foundation, etc.”
So even if Sussmann misrepresented what motivated him to bring the information to the FBI that day, Baker knew that Sussmann was aligned with Clinton. If the FBI was going to treat information from Clinton’s camp with skepticism, Sussmann had provided all of the information necessary for the FBI to form that suspicion. For this reason, his allegedly false statement is, at worst, the equivalent of the ten-minute mile, not material to the matter at issue.
Claiming materiality here is particularly galling in light of DOJ’s treatment of former national security advisor Michael Flynn. Flynn was charged by special counsel Robert Mueller with making false statements when he lied to the FBI about his conversations with the Russian ambassador in late 2016. The U.S. Attorney’s Office in the District of Columbia under former Attorney General William Barr filed a motion to dismiss the indictment on the grounds that Flynn’s statement was not material. While materiality generally has a fairly low bar, the different standard that Durham — who Barr appointed — is holding Sussmann now suggests that he is being treated unfairly. So why would Durham bother to file charges in a case so rife with issues? The date of the indictment carries one clue. It was filed on the last day of the grand jury’s term before the five-year statute of limitations was set to expire on Sept. 19. That this case and a prior case against an FBI lawyer for altering an email are the only charges Durham has filed suggests that this is the closest thing he has found to a crime in his search. Another clue about why this case is being filed is the amount of detail contained in the 27-page indictment. Another clue about why this case is being filed is the amount of detail contained in the 27-page indictment. It discusses the Clinton campaign’s efforts to engage in opposition research on former President Donald Trump, much of it beyond the scope of the very narrow offense with which Sussmann is charged. It may be that Durham is using this indictment as a vehicle to disseminate what he has found to the public so that Trump and his allies can paint a false equivalence between the conduct of the Trump and Clinton campaigns. Mueller found that the Trump campaign shared polling data with a Russia intelligence officer, met with Russians to obtain dirt on Clinton, and coordinated messaging around the disclosure of stolen email messages. With this indictment, Trump can now say that it was Clinton who brought information to the FBI about links to Russia in the first place and yet again claim the Mueller investigation was a hoax. Of course, that points us to the final problem with Durham’s investigation: His assignment was to investigate the origins of the Russia investigation. The DOJ inspector general already found that the investigation opened in July 2016 was properly predicated on information received from a government ally about statements Trump campaign aide George Papadopoulos regarding stolen email messages. Any statement made by Sussmann months later could not possibly have sparked the Russia investigation. Instead of a quest for justice, the indictment appears to be one more shot fired in the information war. Attorney General Merrick Garland had the power to stop this indictment from being filed, and did not do so, perhaps because he believed it to be a valid charge — or maybe because he feared that stopping it would create the appearance that he was acting in furtherance of partisan political interests. While protecting the independence of the institution is a noble cause, it cannot come at the expense of an innocent man being used as a pawn in an ugly political game that will further erode trust in our institutions. The Mueller Report spells out all the ways in which the Russia investigation was not a hoax. The only hoax is the charge contained in this indictment.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
