The 27-page indictment charges Sussmann with a single verbal false statement he allegedly made to the FBI general counsel in September 2016. Sussmann met with the FBI attorney to provide details about unusual Internet data potentially suggesting back-channel communications between the Trump organization and a Russian bank with ties to the Kremlin.
During that meeting, Sussmann allegedly said he was not there on behalf of any client. In fact, the indictment charges, Sussmann was acting on behalf of two clients: an unnamed executive at a major tech company and the Hillary Clinton campaign. That single alleged lie about why Sussmann was there is the basis for the criminal charge.
This is a remarkably weak case, both factually and legally. The indictment doesn’t allege that the computer data itself was false or was doctored to implicate Trump. On the contrary, it says the various researchers recognized some weaknesses in the data and noted their clients were looking for a “true story” that would bolster a narrative about Trump’s Russian ties.
Nor was the FBI deceived about who Sussmann was. The indictment itself says the FBI knew Sussmann represented the Democratic National Committee and the Clinton campaign. But when he brought them computer data allegedly implicating Trump less than two months before the election, the FBI supposedly thought Sussmann was there simply as a “good citizen” who had somehow stumbled across that information? If that’s really true, someone at the FBI should be indicted for aggravated naivete.
The false statement statute requires that the lie to the government be material, meaning that it had at least the potential to influence a government decision. The materiality standard sets a very low bar, but this case is definitely in danger of tripping over it. It isn’t clear how the alleged lie could have influenced anything the FBI did. The indictment does not claim the FBI would not have investigated had Sussmann identified his clients, only that it might have felt differently about the origins of the data.
Even if the charge is legally sound, proving it will be a huge challenge. The alleged false statement was not written down or recorded. There were no witnesses other than the FBI attorney. Given the nature of human language and memory, it’s almost impossible to prove beyond a reasonable doubt precisely what was said during a portion of a single conversation five years ago. Bringing such a “he said/he said” charge as a stand-alone case is basically unheard of.
This prosecution will inevitably be compared to that of disgraced — and now pardoned — former Trump national security adviser Michael Flynn. Flynn was also charged with lying to the FBI, as part of the investigation by special counsel Robert S. Mueller III. And Flynn’s supporters also argued that his lies — denying his conversations with the Russian ambassador — did not matter, because the FBI already had recordings of those calls.
But Flynn’s case was not remotely similar. His lies went to the heart of the matter actually under investigation. And Flynn’s denials actually had an effect — they temporarily stalled that investigation by preventing the agents from following up with additional questions and investigation into matters such as who else in the Trump campaign knew about the conversations or instructed Flynn to have them.
The Sussmann indictment reads like a political document, not a legal one. The bulk of it details efforts of Internet researchers to run down the suspected ties between Trump and the Russian bank. But none of that activity is alleged to have been illegal, and it is largely irrelevant to the actual charge against Sussmann. The indictment tells a story of Democratic operatives engaged in opposition research. That might be unseemly, but it isn’t criminal — and, in the hardball world of presidential campaigns, is hardly surprising.
Twenty-seven pages for a single weak count of false statements feels as though Durham is compensating for something — perhaps for the lack of evidence of the conspiracy against Trump that the former president has so feverishly alleged.
Durham’s probe has lasted for more than two years, longer than the entire Mueller investigation. He has produced only one conviction, a guilty plea last year by a former FBI attorney to a relatively trivial charge involving altering an email. Durham might feel a need to produce some case — any case — to justify how he has been spending his time. But if prosecutions such as this are all he’s got, he should just fold up his tent and go home.