Opinion | Durham's Russia investigation ends not with a bang — but with a whimper

Instead of a quest for justice, the indictment against Michael Sussman appears to be one more shot fired in the information war, @BarbMcQuade writes.

9/20/2021 12:30:00 AM

Instead of a quest for justice, the indictment against Michael Sussman appears to be one more shot fired in the information war, BarbMcQuade writes.

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.

. 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, Sussmann is accused of misrepresented on whose behalf he was providing it.

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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, butDOJ 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. headtopics.com

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.

Sept. 17, 202102:10The 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. headtopics.com

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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, Bakertestified that he did not recallwhether 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 Sussman 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.” headtopics.com

June 2, 202106:40So 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.

Read more: MSNBC »

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BarbMcQuade Can someone explain what the calculus was to not stop this thing. Seems like it has been a waste. BarbMcQuade Great article. RT the article! BarbMcQuade What a waste of resources, effort and taxpayer dollars. trump appointees with credibility like Barr & Durham failed to measure up to the very standards upon which they set themselves before trump “touched” them. ETTD

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