Two individuals allegedly made false statements to federal investigators. One now faces trial on a felony charge. The other does not. I defy you to read about their cases and conclude that justice is served in either instance, or that it is being applied even-handedly.
One of Nassar’s victims, McKayla Maroney, testified before the Senate Judiciary Committee last week about describing how Nassar had repeatedly molested her to one of Abbott’s agents, only to have the agent reply, “Is that all?”
What happened next? For months, nothing, as far as the FBI was concerned. Abbott’s office was supposed to refer the allegations to the FBI’s Lansing, Mich., office, the city where Nassar worked. But that never happened — and Nassar went on to abuse at least 70 more young athletes until he was arrested by Michigan state police 16 months later.
During that time period, Abbott met and corresponded repeatedly with the head of USA Gymnastics, Steve Penny, about a tantalizing job prospect, heading up security for the entire U.S. Olympic Committee.
When the Justice Department’s inspector general interviewed Abbott, since retired, about the bureau’s handling of the Nassar case, he “made multiple false statements” about both the conduct of the investigation and his job talks, in violation of the federal false statements law, the inspector general concluded in a searing report released in July.
Abbott claimed he had spoken with FBI counterparts in Detroit and Los Angeles about the Nassar allegations; both agents denied such conversations, and there was no documentation they occurred.
The inspector general “found no evidence” to support Abbott’s claims — and further concluded that “Abbott’s false statements were knowing and intentional.”
But Abbott also insisted to the inspector general that he had never applied for or taken other steps to secure the Olympics job. This was, according to the inspector general, untrue, deliberately so, and stretched across two sworn interviews, including after Abbott was confronted with evidence to the contrary.
“Abbott, by his own admission, was concerned that applying for a job with the U.S. Olympic Committee posed a conflict of interest with the FBI’s handling of the Nassar investigation, which was a high profile, sensitive matter,” the report noted. “Under this circumstance and given the risk involved, we found it highly unlikely that Abbott forgot about his ultimate decision to apply for the job.”
The inspector general asked the Justice Department’s criminal division to prosecute Abbott for false statements. It declined in September 2020. The lesson? You can lie to federal investigators with impunity.
The second case, with an opposite outcome, involves Michael Sussmann, a Washington lawyer who represented the Hillary Clinton campaign, the Democratic National Committee and a tech company executive during the 2016 election. Sussmann, a former Justice Department official with expertise in cybersecurity, sought a meeting with FBI general counsel James Baker to pass on information about digital connections between a computer linked to the Trump Organization and a Russian bank with ties to the Kremlin.
Justice Department special counsel John Durham, appointed by former attorney general William P. Barr to probe whether there was FBI or intelligence community wrongdoing relating to allegations of Russian interference in the 2016 election, obtained the indictment announced last week, the second criminal charge arising from his two-year probe.
It alleges Sussmann told Baker at the meeting, on Sept. 19, 2016, that he wasn’t doing work on those allegations “for any client.” That led Baker “to understand that Sussmann was acting as a good citizen merely passing along information, not as a paid advocate or political operative,” when in fact, according to the indictment, Sussmann was acting on behalf of the tech executive and the Clinton campaign.
Sussmann’s “lie was material” — meaning that it could have affected the investigation — because it “misled” FBI officials “concerning the political nature of his work and deprived the FBI of information that might have permitted it more fully to assess and uncover the origins of the relevant data and technical analysis,” the indictment alleges.
As former federal prosecutor Randall D. Eliason has noted, this single false statement, before a single witness, is about as weak as a case can get. Whatever he told them, FBI officials knew full well that Sussmann represented Democrats and the Clinton campaign.
Baker didn’t take notes of the meeting. The evidence of Sussmann’s alleged misstatement, such as it is, comes from handwritten notes of the conversation made by another FBI official later that day. Sussmann also billed the meeting to the Clinton campaign, according to the indictment, an assertion his lawyers contest.
Sussmann has said he told Baker he was there on behalf of the tech client. Baker, testifying before House committee in 2018, said “I don’t remember him specifically saying that he was acting on behalf of a particular client” — a far cry from recalling a specific assertion from Sussmann that he wasn’t representing a client.
But assume that Sussmann did lie. Is there a reason to make a federal case out of it? There’s no indication, in the 27 discursive pages of the indictment, that Sussmann was knowingly trying to peddle false information. There’s no indication that the FBI, had it known the identity of Sussmann’s clients, would have proceeded much differently: it looked into the allegations and decided there wasn’t anything to them. What harm did the alleged lie cause?
Further, the Sussmann prosecution contradicts the entire predicate of Durham’s investigation. The probe was launched, more than two years ago, on the theory that the FBI was somehow hijacked by “deep state” conspirators who concocted the “Russia hoax” to prevent Donald Trump’s election. But in Durham’s retelling in the Sussmann indictment, the FBI was not a bad actor but a hapless victim of outside forces.
And consider: If the lesson of the Abbott non-prosecution is that you can repeatedly lie to federal investigators and get away with it, the lesson of the Sussmann indictment is that you bring information to the attention of federal investigators at the peril of your career and your freedom.
Where, you might ask, is Attorney General Merrick Garland in all this? In an exquisitely difficult position. Even though Durham is a Barr-appointed special counsel, Garland retains the power to supervise his investigation. But stepping in to prevent Durham from seeking this flimsy indictment risked generating a political uproar, with unsettling echoes of Barr’s heavy-handedness. Now, it is too late.
While Abbott collects his government pension, Sussmann, who has resigned from his law firm, faces ruin. These twin miscarriages of justice, each wrong on its own, are sickening when taken together.