Defendant’s laughable ‘patriotic’ defense
DEFENSE attorneys for Clinton campaign lawyer Michael Sussmann have portrayed their client as the paragon of patriotic professionalism. Yet to believe his defense to the felony false-statement charge brought by Russiagate special counsel John Durham, you’d have to conclude that Sussmann is the most unethical lawyer in Washington, DC.
Sussmann is accused of insisting that he was not representing any client in September 2016 — the stretch run of the heated presidential campaign — when he peddled to the FBI bogus evidence of a supposed communications back channel between Donald Trump and the Kremlin. Sussmann was bringing the information only because he wanted to “help the bureau” protect the country, he told the FBI’s then-general counsel, James Baker, in a text message.
Sussmann has no real defense to the charge. The evidence is so overwhelming that he was representing the Clinton campaign at the time of his meeting with Baker that Sussmann does not challenge it. Moreover, the information he provided to the FBI — Internet data explained by white papers — was compiled by another client, tech executive Rodney Joffe, who was hoping for a cybersecurity job in the anticipated Hillary Clinton administration. Joffe worked on the materials in conjunction with Fusion GPS, the information outfit retained to dig up dirt on Trump by top Clinton campaign counsel Marc Elias, who was then Sussmann’s law partner.
Truth is obvious
It’s obvious that Sussmann was representing the Clinton campaign and Joffe when he said he wasn’t representing anyone. For conviction, prosecutors must show that a statement was not only false but also material. On this, though, the evidence is also irrefutable.
For obvious reasons, the FBI needs to know the motivations of people who proffer information. As a former longtime Justice Department lawyer, Sussmann knew this. Indeed, he lied precisely because he knew that if he had honestly told Baker the information was partisan opposition research he was providing to the FBI on behalf of the Clinton campaign, his gambit would have been dismissed as a ploy to enmesh the bureau in electoral politics.
So what is Sussmann’s defense? He claims that, although he may technically have been representing the Clinton campaign during that time frame, he was not really representing the campaign in connection with the FBI meeting.
He insists that campaign officials would have been opposed to his bringing the Trump-Russia information to the bureau because they wanted it to be promoted by the media — a strategy Hillary Clinton personally approved. Going to the FBI, on this rationalization, would have been counterproductive because the bureau would lean on the press to delay publishing until agents had time to investigate.
Consequently, we’re to believe that Sussmann went to the FBI against his client’s interests, because of his own patriotic concerns for national security.
This is a laughable defense. Enticing the FBI into investigating the Trump-Russia allegations would have made the story more attractive to the media and more explosive for the “October surprise” objective of the Clinton campaign — an election-eve story that the FBI suspected Trump of being a Putin plant.
But put that aside. Under professional ethics standards, a lawyer has a duty of fealty to his client. Thus, as the American Bar Association’s rules put it, “the lawyer’s own interests should not be permitted to have an adverse effect on representation of a client.”
If Sussmann truly believed that his visit to the FBI, purportedly motivated by his own selfless patriotism, was against the Clinton campaign’s interests, then his ethical obligation was to disclose his intention to his client and obtain a
waiver allowing him to go ahead with the meeting.
No campaign waiver
Of course, Sussmann didn’t seek permission and he didn’t obtain a waiver from the Clinton campaign. To believe Sussmann’s defense, then, you’d have to believe he is without scruples — precisely the opposite of the image his attorneys have projected.
We shouldn’t puzzle long over this. It is utter nonsense.
Sussmann didn’t violate the ethics rules because his visit to the FBI was absolutely in the Clinton campaign’s interests. That’s why Sussmann billed the campaign for his visit to Baker. And it’s why, eight days before the election, Hillary and her then-adviser (and nowBiden national security adviser) Jake Sullivan tweeted: “We can only assume that federal authorities will now explore this direct connection between Trump and Russia.”
If Sussmann is acquitted, it will be because he lucked into being tried in Washington, DC, where the jury pool runneth over with partisan Democrats. He’s got nothing else.