To no one’s surprise, a jury on Tuesday acquitted attorney Michael Sussmann of charges that he made a false statement to the FBI in 2016. Everyone but special counsel John Durham seemed to see this verdict coming.
At one point during his trial testimony, FBI General Counsel Jim Baker himself seemed to distance himself from the ill-fated prosecution.
As I wrote in September, the charge of making false statements to the FBI appeared to be doomed from the start. The indictment alleged that Sussmann, a lawyer who formerly worked for the Justice Department, met with FBI General Counsel Jim Baker in September 2016 and claimed to have information about connections between a Russian bank and the Trump Organization. (Sussmann, who had once worked with Baker at the Justice Department, requested the meeting.)
Although the lead did not pan out, prosecutors did not allege that the substance of the information was false, but rather that Sussmann misrepresented whether he was coming to share it with the FBI “on behalf of” any client.
At one point during his trial testimony, Baker himself seemed to distance himself from the ill-fated prosecution, telling the prosecutor: “This is not my investigation. This is your investigation.” Even the jury foreperson said she thought the case should not have been prosecuted. A fellow juror said everyone in the jury room “pretty much saw it the same way.”
To prove a charge of false statements, prosecutors must show that a defendant knowingly and willfully made a statement that was materially false. Here, the elements of falsity and materiality were both weak on their face.
As to falsity, the nature of the alleged statement made it almost impossible to prove. To show that a statement is false, the government must be able to show that it conflicts with the truth. But Sussmann’s statement did not involve an objective fact that could be shown to be true or false. The prosecution set out to show that the one true reason Sussmann had asked to meet with the FBI was to advance a plot to benefit the presidential campaign of Hillary Clinton. Sussmann’s law firm represented the Clinton campaign, and by sharing information with the FBI and the media, the theory went, Sussmann was planting an October surprise to harm Donald Trump’s chances in the November election.
But as most jurors understand, it is possible for two things to be true at the same time — that Sussmann worked for the law firm that represented the Clinton campaign and that he was going to the FBI on his own. One plausible explanation for his conduct is that, as a former Justice Department employee who had come into possession of information about the apparent efforts of a hostile foreign adversary to influence an election, he felt compelled to report it to his former colleagues at the FBI.
The materiality element was also fatally flawed. Materiality means that the statement mattered, that it was capable of influencing the topic under consideration. That is, not all false statements are crimes, only those that matter. For example, if Sussmann had also told Baker that his favorite color was red when, in fact, his favorite color is blue, that statement might be false, but it would not be material to the matter at issue.
In this case, the government alleged that Sussmann’s statement was material because if FBI personnel had known that Sussmann was providing the information on behalf of the Clinton campaign, they would have proceeded differently. This argument likely failed for two reasons. First, Sussmann’s affiliation with the law firm representing the Clinton campaign was already well-known, and if FBI agents thought they should discount the information based on this affiliation, they had the information they needed to make that assessment. Indeed, according to the indictment, notes written by one of Baker’s colleagues shortly after the meeting with Sussmann said, “Represents DNC, Clinton Foundation, etc.”
Second, at a previous meeting with congressional investigators, Baker had testified that the FBI investigates leads regardless of who provides them. In other words, it did not matter whether Sussmann was coming “on his own” or on “behalf” of any client.
The weakness of the evidence was too much to overcome, and Sussmann was, predictably, acquitted. But why would Durham, an experienced prosecutor, file charges he was surely destined to lose? Durham was appointed by then-Attorney General William Barr. He was tasked with looking into the FBI’s investigation of connections between the Trump campaign and Russia, which Trump has long maintained was a hoax. Durham has proved no such thing. To date, Durham’s only conviction of a government official was on a false statement charge against an FBI lawyer who had altered an email message in support of an application for surveillance — egregious conduct, no doubt, but certainly not proof of an FBI “Russiagate” conspiracy. Durham’s investigation has always had the feel of a vengeance tour, an opportunity to change the narrative surrounding Trump and portray the FBI as having engaged in wrongdoing. Durham’s indictment of Sussmann shifted the FBI’s role from alleged villain to alleged dupe, portraying the agency as having been victimized by the Clinton campaign to plant a false story about connections to Russia. The Sussmann indictment also provided a convenient counternarrative to the facts laid out in special counsel Robert Mueller’s report. The indictment also provided a convenient counternarrative to the facts laid out in special counsel Robert Mueller’s report. False statement indictments generally run a few pages. This one was 27 pages, filled with details about efforts by the Clinton campaign to conduct opposition research on Trump. The indictment provided a vehicle for commentators to turn the tables on Clinton and create the (false) impression that the Russia investigation was all a fabrication of the Clinton campaign. Of course, that narrative ignores Mueller’s findings that the Trump campaign met with Russians at Trump Tower to obtain dirt on Clinton, shared polling data with a Russia intelligence officer and coordinated messaging around the disclosure by WikiLeaks of stolen email messages. That narrative also overlooks when the FBI’s investigation was opened — July 2016 — based on statements Trump campaign aide George Papadopoulos made about stolen email messages. Any statement Sussmann made in September 2016, two months later, could not possibly have triggered the Russia investigation. Efforts to rewrite history rely on members of the public to lose track of the details. Fortunately for Sussmann, the jury was paying attention.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
