Even before the indictment against Sussmann, Durham’s investigation was an enigmatic and strange undertaking. During 2020, Trump card and Barr teased the possibility of explosive pre-election developments that never occurred, and political pressure to find something seems to have led to the resignation of a senior prosecutor on Durham’s team. Still, in October Barr referred to Durham as a “special investigator” in an obvious (though legally nonsensicalEfforts to consolidate Durham if Biden wins the election.
The only tangible outcome of the Durham investigation was the 2020 indictment of a low-ranking FBI attorney named Kevin Clinesmith, who should have been brought widely more concerns about the conduct of Durham and his prosecutors than then. Clinesmith changed an internal email while working on an application to the Foreign Intelligence Surveillance Court in 2017 to monitor Trump’s campaign advisor Carter Page. Mainly thanks to the addition of the conservative media to Durham’s team – the one among others claimed that Clinesmith was motivated by anti-Trump bias – many people took this to mean that (a) the altered email somehow led the court to approve Page’s surveillance, and (b) that Clinesmith had deliberately tried to get the court over to deceive.
None of these things were true. Durham’s team cashed at the last minute that there was “no indication” that the email, which was on a relatively narrow subject matter, had an impact on everything that went on within the FBI or the FISC. And the presiding judge finally concluded that Clinesmith was not “To accomplish something inappropriately”, that he actually believed what he wrote and that he merely “saved himself work” by changing the email in question.
This is not intended to excuse the behavior – Clinesmith took full responsibility for it when he pleaded guilty – but it has been completely exaggerated by Durham’s prosecutors and many right-wing commentators. In a less politically charged context, there’s a very good chance that Clinesmith, who ultimately received a suspended sentence, would never have been prosecuted in the first place.
Sussmann’s indictment seems to reflect a similarly questionable exercise of discretion by the public prosecutor.
Sussmann is charged with lying in a meeting with Jim Baker, then General Counsel of the FBI, in September 2016. The indictment alleges that Sussmann “falsely stated that he was not acting on behalf of a client” and “conveyed the allegations as a good citizen” when in fact he did so as part of his law firm’s work for the Clinton campaign.
This could have been a couple of pages, but Durham’s team produced a 27-page indictment suggesting that what really offended them was the way in which the underlying technical analysis Sussmann Baker was used to provide Had provided, was insulted was prepared and disseminated at that time. The indictment essentially alleges that the Clinton campaign used its attorneys to provide technical analysis to both the FBI and the FBI the media prepared by people who knew it was rubbish and that they did so to further the “narrative” that Trump had shady relations with Russia.
The not-so-subtle implication is that Sussmann himself knew the analysis was rubbish when he pushed the FBI to investigate, but the indictment doesn’t really come out. It may have been difficult for the prosecutor to finally establish this one way or another, as Sussmann’s communications on this point may have been privileged. This appears to have left Durham’s team behind with Sussmann’s supposedly misrepresentation about who he represented when he met with Baker.
Even on this narrow theory, the Sussmann case suffers from some essential Problems. For one thing, it is far from clear that the alleged misrepresentation took place in the first place: Baker attended the session alone and later testified before Congress what Sussmann said that is arguably incompatible with the indictment. The legal materiality threshold is also very favorable for the government, but in practice it is hard to believe that the alleged misrepresentation was of great importance, especially since the office appears to have known that Sussmann and his company were working on behalf of the Democratic Party and the Clintons. The case has also been filed in DC – not exactly a Trump-friendly jurisdiction – so it’s not hard to imagine a jury acquitting Sussmann if he takes the case to court, further suggesting the indictment may be sooner intended for the court was opinion than anything else.
All of this has clearly had the appearance of an attempt by Durham’s team to scapegoat Sussmann for potentially inappropriate behavior by the Clinton campaign that they are unwilling to prosecute – and that they may never be able to prosecute in the same way that they forced Clinesmith to take public responsibility for page surveillance. It remains to be seen whether the latest summons to Sussmann’s office will actually bring anything, but at least from the outside, the effort looks suspiciously like a proverbial catch of fish. Those concerns were further exacerbated on Thursday than either CNN and the New York Times published stories suggesting that the allegations in the Sussmann indictment were based on a very selective – and arguably insincere – characterization of relevant email.
It’s possible that Durham’s team exposed a legitimate media and political scandal – assuming the Clinton campaign used Sussmann to provide the FBI with a shoddy analysis, the main purpose of which was to open a federal investigation that Trump in the days before choosing while some journalists were at best too gullible of political activists – but nonetheless, Durham is not supposed to be a taxpayer-funded media ombudsman or political reporter. If he wants to bring alleged facts to the public, which in his opinion are of legitimate public interest, but which are of questionable relevance for an actual criminal prosecution, he can include them in the public report to be prepared by him and the public can weigh them accordingly .
In the two and a half years and Millions of dollars since the beginning of his investigation, Durham has not yet identified one Misconduct of real consequence inside the FBI. We are in the surreal position of having an ongoing criminal investigation into the 2016 election while the DOJ under Garland appears to be sitting idle information continues accumulate that offers Further Reason to investigate Trump’s behavior even after the 2020 elections.