The Return Of Russia Collusion: Clinton Lawyer Indicted

It's been a while since writing about the Russia Collusion mess (for my summary go here, for all posts use this link) but last week Special Counsel John Durham indicted Michael Sussman, a Clinton campaign lawyer, for making a "materially false, fictitious, and fraudulent statement or representation" to the General Counsel of the FBI.  As two commentators I have found reliable, Andrew McCarthy of NRO and shipwreckedcrew (1), have noted, if this was a simple false statement indictment it could have been done in a couple of paragraphs and pages; instead the indictment runs for 27 pages and exposes a rat's nest of related activities, perhaps presaging more indictments down the road - at least we can hope.  And, unlike the SCO Mueller's showboating indictment against several Russian organizations alleging election interference, the Durham indictment is one of substance (2).

Before discussing the contents of the indictment and what it may indicate, let's rewind the tape.

The starting point for the FBI probe that began in July 2016 and eventually transmogrified into Special Counsel Mueller's investigation in May 2017, was information that a member of Donald Trump's National Security Advisory Board (3), George Papadopolous, had been approached by someone associated with Russia who advised they had damaging information regarding Hillary Clinton.  The alleged transmitter of this information was Josef Mifsud and I hope we eventually find out what, and who, prompted Mifsud to contact Papadopolous (4).

However, the FBI investigation was stalled until Christopher Steele (a former UK intelligence officer) approached the agency with a dossier purporting to include information that Trump had multiple connections with the Russian government, information in part claimed to have been obtained from Russian intelligence sources.  Using the dossier information, which FBI and DOJ officials claimed was verified and reliable, a warrant was obtained (and renewed three times) from the FISA Court allowing communications of Carter Page, another member of Trump's advisory board, to be monitored (5).

We now know that the Steele Dossier was never verified; at least some of the FBI and DOJ officials attesting to its accuracy knew the truth that rather than being sourced from Russian intelligence (which incidentally, if true, would have undercut the narrative that the Kremlin favored Trump in the 2016 election) it consisted mostly of second and third hand gossip, and its primary source stated he had no idea if the information he gave to Steele was accurate.  Indeed, the Steele Dossier, deemed so critical to the case for Russia collusion by the Democrats and the media in 2017, was studiously ignored in Special Counsel Muller's report released in 2019. (5)

Moreover, we learned the dossier had been produced at the direction of, and with funding from, Hillary Clinton's presidential campaign, which was also leaking its contents to the media during and after the election campaign.  

One of the many allegation contained in the dossier was that the Trump Organization was secretly communicating with the Kremlin through its servers to servers operated by the Russian owned Alfa Bank (mistakenly referred to in the dossier as Alpha Bank).

And that brings us to the recent indictment.

The reason for the indictment is simple.  On September 19, 2016 Michael Sussman met with James A Baker, General Counsel of the FBI, to convey allegations regarding connections between Donald Trump, the Trump Organization, Alfa Bank, and the Russian government.  In that conversation he stated to Baker that he was not acting on behalf of any client in conveying the allegations, in fact he'd come as "a good citizen.”  The indictment alleges that, in fact, Sussman was acting on behalf of the Clinton Campaign and a Tech Executive client (and the indictment includes detailed information on Sussman's billing records to substantiate the allegation).  This statement was a criminal violation of Title 18, Section 1001 of the U.S. Code, more commonly referred to as the "False Statement" provision.

As to the substance of the allegation, the FBI ultimately determined after an investigation that there was no support for them.  The indictment notes:

In particular, and among other things, the FBI's investigation revealed that the email server at issue was not owned or operated by the Trump Organization but, rather, had been administered by a mass marketing email company that sent advertisements for Trump hotels and hundreds of other clients.

And the DOJ Inspector General report concluded:

The FBI investigated whether there were cyber links between the Trump Organization and Alfa Bank, but had concluded by early February 2017 that there were no such links.

Nonetheless, the allegations required FBI time and resource to investigate and leaks to the media prompting many stories in late October 2016, clearly designed to influence the election, from outlets like Rachel Maddow promoting the allegation as true (media stories continued well into 2018 when Dexter Filkins wrote a ridiculous piece in The New Yorker about the connection).

That this was a significant part of the Clinton campaign effort can be seen by these tweets from Hilary Clinton promoting the story manufactured by her campaign:

Computer scientists have apparently uncovered a covert server linking the Trump Organization to a Russian-based bank. pic.twitter.com/8f8n9xMzUU

— Hillary Clinton (@HillaryClinton) November 1, 2016

 Note the statement from Jake Sullivan, currently National Security Adviser to President Biden.

It's time for Trump to answer serious questions about his ties to Russia. https://t.co/D8oSmyVAR4 pic.twitter.com/07dRyEmPjX

— Hillary Clinton (@HillaryClinton) October 31, 2016

 

 

According to the indictment how did this all come about?

Michael Sussman is a former DOJ lawyer (and Democrat) who had a cybersecurity law practice at the firm of Perkins & Coie, the same firm at which Marc Elias headed, until recently, the election law practice, and represented most of the national organs of the Democratic Party, including the Democratic National Committee and, in 2016, the Clinton campaign.  It was Elias who retained FusionGPS which, in turn, hired Christopher Steele to create the dossier.

In April 2016, Sussman was brought in by Marc Elias to represent the Democratic National Committee in connection with the alleged hacking of its servers by the Russian government.  On December 18, 2017 Sussman gave testimony on that matter to the House Intelligence Committee.  In June 2020 I wrote a summary of that testimony, but what I didn't focus on at the time, not thinking it important, was Sussman's statement to the Committee (at page 56) that he met with James Baker in September 2016 to convey certain allegations regarding the Trump campaign and disclosed he was working for a client on the matter; testimony cited in the recent indictment in support of the false statement allegation.

The only participants in the September 2016 meeting were Baker and Sussman, so the Special Counsel must have testimony directly from Baker that Sussman did not make a disclosure during the meeting and the indictment specifically references Baker's notes from the meeting state, "said not doing this for any client" and that he'd "been approached by Prominent Cyber People (Academic or Corp. POCs)".

Where did the information regarding Trump and Alfa Bank come from?

Sussman frequently served as counsel for a company designated as Internet Company-1 in the indictment and which is apparently Neustar, described by Wikipedia as:

"provides clearinghouse and directory services to the global communications and Internet industries. Neustar is the domain name registry for a number of top-level domains, including .biz, .us (on behalf of United States Department of Commerce), .co, .nyc (on behalf of the city of New York), and .in (on behalf of the National Internet Exchange of India)."

Throughout his work with Neustar, Sussman's primary point of contact was a individual designated in the indictment as Tech Executive-1.  This individual also hired Sussman in 2015 as his lawyer in a matter involved an agency of the U.S. government.  This individual apparently was Rodney Joffe, Senior VP and Senior Technologist of Neustar.  Right after the Sussman indictment, it was announced that Joffe had left Neustar.  The indictment alleges that as a result of his position:

Tech Executive-1 maintained direct or indirect access to, and the ability to provide others access to, large amounts of internet and cybersecurity data

The indictment goes on to allege that Tech Exec-1 claimed:

"I was tentatively offered the top [cybersecurity] job by the Democrats when it looked like they'd win.  I definitely would not take the job under Trump." 

In July 2016, Originator-1, an anonymous computer research and business associate of Tech Exec-1 claimed to have identified DNS lookups between Alfa Bank and the email domain "mail1.trump-email.com" and Tech Exec alerted Sussman.  In the following weeks,

Sussman and Tech Executive-1 engaged in efforts with Campaign Lawyer-1 [Elias] and individuals acting on behalf of the Clinton Campaign to share information about the Russian Bank Data with the media and others . . .

Throughout this period;

Tech Executive-1 used his access at multiple organizations to gather and mine public and non-public Internet data regarding Trump and his associates, with the goal of creating a "narrative" regarding the candidate's ties to Russia.

The indictment alleges Tech Executive-1 wanted that narrative to please certain "VIPs".

The problem was that Tech Exec-1 and Sussman weren't coming up with much and those they had tasked with the research were becoming uncomfortable.  The indictment alleges these individuals:

. . . were uncomfortable regarding this taking from Tech Executive-1 because they believed that using the companies' data in this manner was inappropriate.  They complied with the tasking, however, because Tech-Executive-1 was a powerful figure at both companies.

One of the researchers told Tech Executive-1 that what he was finding "does not make much sense with the storyline you have" and additional disappointing information followed.  Nonetheless Tech Exec-1 told the researchers, "Being able to provide evidence of 'anything' that shows an attempt to behave badly in relation to this, the VIPs would be happy" and insisted that additional research would "give the base of a very useful narrative."

Even after his exhortations, one of the researchers responded:

. . . you do realize that we will have to expose every trick we have in our bag to even make a very weak association . . . we cannot technically make any claims that would fly public scrutiny.  The only thing that drive[s] us at this point is that we just do not like [Trump].  This will not fly in the eyes of public scrutiny.  Folks, I am afraid we have tunnel vision.

Despite this, Sussman and the others began to prepare a "white paper" on the allegations that would later be provided to FBI General Counsel Baker.  The indictment alleges the white paper was constructed in order to make plausible allegations even if not "fact" and to avoid mentioning any of the issues the researchers encountered which would allow any experts to poke holes in the narrative.

It was this document that Sussman went to Baker with and also used with the media to spread the story.

As Andrew McCarthy summarized it:

In a nutshell, then, people closely connected to the Clinton campaign use privileged access to nonpublic information for political purposes. They concoct it into a political narrative that they know is baseless but can be convincingly spun to suggest Trump is in cahoots with Putin.

I mentioned earlier that Christopher Steele mistakenly referenced Alfa Bank as Alpha Bank in his dossier.  Alfa Bank sued Steele for defamation in the British courts.  In his deposition, Steele revealed his source for the bank allegations was not Russian; it was Michael Sussman! 

Now you know why some people have become obsessed with the Deep State.

An obvious part of the story behind the indictment is Durham's obtaining of lawyer billing records and communications from Perkins Coie, something law firms do not easily part with.  I imagine this took months of negotiations to obtain and it is possible that the law firm itself was threatened with prosecution.  Sussman resigned from Perkin after the indictment and two weeks prior to its filing Marc Elias and his entire election law team left the firm.  At the time, I wondered what was going on and it is obvious now that the firm and Elias knew the indictment was coming and that prompted the split and, as mentioned above Tech Executive-1 (Joffe) has now left his company.

Based on the indictment it looks like Durham has obtained the cooperation of a number of the researchers working for Joffe and a reading of the indictment indicates more prosecutions may be coming (6).

Durham was forced to file regarding Sussman's meeting with Baker because the five-year statute of limitations was expiring but the indictment also alleges that "Sussman would later convey these allegations to another U.S. agency.  In doing so, and as alleged below, Sussman repeated in substance, the same false statement he had made to the FBI General Counsel that he was not acting on behalf of a client".  Those meetings took place in December 2016 and February 2017, so Durham has more time to file additional charges.  It is also possible, given the details laid out, that Special Counsel may eventually allege that this episode is part of a larger conspiracy because of its tie to the Steele Dossier.  In addition, the indictment is careful to lay out Sussman's communications on this matter with Clinton campaign manager Robbie Mook and foreign policy advisor Jake Sullivan.  It is clear they knew Sussman would meet with Baker.  Did they know Sussman would not disclose his connection to the campaign?  Seems like grand jury time for them.

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(1)  shipwreckedcrew is the twitter handle of a former prosecutor with the DOJ for more than 20 years.  I have found his legal commentary to be accurate and insightful though his political commentary more erratic. 

(2) In my 2020 summary post on Russia Collusion, I wrote about the collapse of Mueller's indictment:

In 2018, to great media fanfare, the Mueller team announced an indictment of several Russian companies and individuals alleging interference with the 2016 elections.  All of the usual media suspects greeting it with delight, with this headline from The Atlantic typical, "Mueller's Indictment Puts Details Behind Claims Of Russian Interference".  However, even at the time, it was evident to more neutral observers this was just another gamesmanship move by Mueller to generate headlines from favorable media and keep alive the illusion of a Russian conspiracy with the Trump campaign (though the indictment did not allege collusion), evident because Mueller was using a unique legal theory of liability  and, more importantly, the defendants were all located in Russia, not subject to U.S. jurisdiction and therefore, the Mueller team calculated, no chance the case would ever come to trial and they be forced to proved their allegations, fulfilling their objection of generating press coverage without ever being put to the test.

Well, that's how they thought it would work, but were surprised when one of the Russian companies, Concord Management and Consulting, hired a U.S. law firm which challenged the indictment and immediately ensnared the Mueller team in an embarrassing situation because it could not provide the defendant with legally required discovery materials and was not prepared to actually prove its allegations.  It proved to be a complete fiasco for the prosecution.  In 2019 the Federal District Court judge presiding over the case admonished the Mueller team for making false statements improperly alleging some of the defendants were Russian government tools.  Increasingly tied up in knots by the defendant, unable and unwilling to go to trial, the remaining Muller prosecutor moved to dismiss the case, a dismissal granted by the court on March 16, 2020 "with prejudice", meaning it cannot be refiled in the future. 

 Oddly, the indictment did not charge any of the defendants with spending money to influence US elections or, as agents of foreign countries, engaging in political activities without registering, even though both those actions are against US law (though it didn't stop the news media for reporting that is what the defendants were indicted for).  Instead, the defendants were charged with conspiracy to defraud the United States, a charge never before filed in such circumstances, and usually utilized when, for instance, someone defrauds Medicare.  The likely reason the Mueller team did not file the obvious charges against the defendants in this case was because Christopher Steele, FusionGPS, and the Clinton campaign could have been indicted on the same basis.

(3) For background on the fiasco around the National Security Advisory Board read this.

(4)  There were two starting strands to the Russia Collusion matter.  One was the Clinton campaign's attempt via the Steele Dossier to concoct a false narrative about Donald Trump's supposed collusion with the Kremlin, an effort in which Trump's stupid and reprehensible statements about Putin played right into Clinton's hands.  The Clinton campaign used this information with the media and to provoke the FBI into beginning an investigation of the Trump campaign, an effort which succeeded though one can question why it did not also prompt the FBI to begin an investigation of the Clinton campaign.

The second, I believe, was an effort by American and some allied intelligence agencies to derail the Trump campaign.  This was the Mifsud gambit, though Stefan Halper also played a role in the effort.  It appears that Mifsud was not a Russian asset, nor did he work for the FBI.  It is possible, but not likely, he may have freelanced and approached Papadopolous on his own.  The more likely scenario is he made the approach prompted by British intelligence (with which he has close links), perhaps encouraged by Clapper and/or Brennan.  This may explain the FBI and Mueller gang's curious treatment of Mifsud.  When he visited Washington in February 2017 (as an invited panelist to a State Department event!), he was interviewed by the FBI, denied Papadopoulos' version of their conversation, claiming he never said anything about Clinton emails, and was allowed to return to Italy.  He was never detained or questioned further by the FBI or Mueller.  For more on this episode see Footnote 2 on my Election Tampering post.

With the opening of Crossfire Hurricane and the subsequent use of the Steele Dossier to obtain the Carter Page warrant, the two strands merged in September/October 2016.  After the election the participants shifted to an outside media strategy of using "Russia Collusion" to delegitimize the results of the election and the Trump presidency and an inside strategy of disrupting the operation of the incoming administration, generating stories for their media allies to use, and hoping to lure Trump into a fatal mistake which could be used to oust him.  The installation of Mueller as Special Counsel in May 2017, along with the sidelining of AG Jeff Sessions, allowed the insiders a free hand generating fake stories for an adoring press for the next two years, before AG Barr stepped in to call a halt to the circus.  All this despite the fact that by the time of Mueller's appointment all the principals knew there was nothing of substance there.

(5) The FISA Court has since found, based upon the devastating DOJ Inspector General report and subsequent government admissions, regarding the Page warrant applications:

"The government acknowledges that there were material omissions, and the Court has found violations of the government's duty of candor, in all four applications" (In Re Carter W. Page, p. 3)

After all he's been through (and without ever having the assistance of counsel) Carter Page stands as the most innocent man in America.

(6)  This link takes you to a link on an article from Paul Sperry at Real Clear Investigations reporting more alleged threads from Durham's investigation.  Unlike McCarthy and shipwreckedcrew who have a good track record on legal analysis, Sperry's record is more spotty, so I've included the link as something highly speculative rather than as something I am confident is correct in all its assertions.  However, one item in Sperry's report is consistent with what I've seen from other sources and that is Durham's interest in Daniel Jones, a Democratic operative and former staffer for Senator Diane Feinstein, who in early 2017 set up an opposition research project, focused on Russia and undermining the results of the presidential election, with $50 million in funding from Silicon Valley sources, a project which seems to have been the source for many media articles.