Durham wins indictment of lawyer at firm with Democratic Party ties
WASHINGTON — John Durham, the special counsel appointed by the Trump administration to scrutinize the Russia investigation, has convinced a grand jury to indict a prominent cybersecurity lawyer on a charge of making a false statement to the FBI.
The grand jury on Thursday handed up an indictment of Michael Sussmann, a former federal prosecutor and now a partner at the Perkins Coie law firm, and who represented the Democratic National Committee on issues related to Russia’s 2016 hacking of its servers.
Donald Trump and his supporters have long accused Democrats and Perkins Coie — whose political law group, a division separate from Sussmann’s, represented the party and the Hillary Clinton campaign — of seeking to stoke unfair suspicions about Trump’s purported ties to Russia.
The case against Sussmann centers on the question of who his client was when he conveyed certain suspicions about Trump and Russia to the FBI in September 2016. Among other things, investigators have examined whether Sussmann was secretly working for the Clinton campaign — which he denies.
Sussmann’s lawyers, Sean M. Berkowitz and Michael S. Bosworth of Latham & Watkins, acknowledged Wednesday that they expected him to be indicted, while denying he made any false statement.
“Mr. Sussmann has committed no crime,” they said. “Any prosecution here would be baseless, unprecedented and an unwarranted deviation from the apolitical and principled way in which the Department of Justice is supposed to do its work. We are confident that if Mr. Sussmann is charged, he will prevail at trial and vindicate his good name.”
A spokesperson for Attorney General Merrick Garland, who has the authority to overrule Durham but is said to have declined to, did not comment. Nor did a spokesman for Durham.
The accusation against Sussmann focuses on a meeting he had Sept. 19, 2016, with James A. Baker, who was the FBI’S top lawyer at the time, according to the people familiar with the matter. They spoke on condition of anonymity.
Because of a five-year statute of limitations for such cases, Durham had a deadline of this weekend to bring a charge over activity from that date.
At the meeting, Sussmann relayed data and analysis from cybersecurity researchers who thought that odd internet data might be evidence of a covert communications channel between computer servers associated with the Trump Organization and with Alfa Bank, a Kremlin-linked Russian financial institution.
The FBI eventually decided those concerns had no merit. The special counsel who later took over the Russia investigation, Robert Mueller, ignored the matter in his final report.
Sussmann’s lawyers have told the Justice Department that he sought the meeting because he and the cybersecurity researchers believed that The New York Times was on the verge of publishing an article about the Alfa Bank data and he wanted to give the FBI a heads-up. (In fact, The Times was not ready to run that article but published one mentioning Alfa Bank six weeks later.)
Durham has been using a grand jury to examine the Alfa Bank episode and appeared to be hunting for any evidence that the data had been cherry-picked or the analysis of it knowingly skewed, The New Yorker and other outlets have reported. To date, there has been no public sign that he has found any such evidence.
But Durham did apparently find an inconsistency: Baker, the former FBI lawyer, is said to have told investigators that he recalled Sussmann saying that he was not meeting him on behalf of any client. But in a deposition before Congress in 2017, Sussmann testified that he sought the meeting on behalf of an unnamed client who was a cybersecurity expert and had helped analyze the data.
Moreover, internal billing records Durham is said to have obtained from Perkins Coie are said to show that when Sussmann logged certain hours as working on the Alfa Bank matter — though not the meeting with Baker — he billed the time to Clinton’s 2016 campaign.
Another partner at Perkins Coie, Marc Elias, was then serving as the general counsel for the Clinton campaign. Elias, who did not respond to inquiries, left Perkins Coie last month.
In their attempt to head off any indictment, Sussmann’s lawyers were said to have insisted that their client was representing the cybersecurity expert he mentioned to Congress and was not there on behalf of or at the direction of the Clinton campaign.
They also werer said to have argued that the billing records were misleading because Sussmann was not charging his client for work on the Alfa Bank matter but needed to show internally that he was working on something. He was discussing the matter with Elias and the campaign paid a flat monthly retainer to the firm, so Sussmann’s hours did not result in any additional charges, they said.
Last October, as Durham zeroed in on the Alfa Bank matter, the researcher who brought those concerns to Sussmann hired a new lawyer, Steven A. Tyrrell.
Speaking on the condition that The New York Times not name his client in this article, citing a fear of harassment, Tyrrell said his client thought Sussmann was representing him at the meeting with Baker.
“My client is an apolitical cybersecurity expert with a history of public service who felt duty bound to share with law enforcement sensitive information provided to him by DNS experts,” Tyrrell said, referring to “Domain Name System,” a part of how the internet works and which generated the data that was the basis of the Alfa Bank concerns.
Tyrrell added: “He sought legal advice from Michael Sussmann, who had advised him on unrelated matters in the past, and Mr. Sussmann shared that information with the FBI on his behalf. He did not know Mr. Sussmann’s law firm had a relationship with the Clinton campaign and was simply doing the right thing.”
Raising the specter of politicization in the Durham inquiry, lawyers for Sussmann are said to have argued to the Justice Department that Baker’s recollection was wrong, immaterial and too weak a basis for a false-statements charge. There were no other witnesses to the conversation, the people familiar with the matter said.
In a deposition to Congress in 2018, Baker said he did not remember Sussmann “specifically saying that he was acting on behalf of a particular client,” but also said Sussmann had told him “he had cyberexperts that had obtained some information that they thought should get into the hands of the FBI.”
However, Durham’s team is said to have found handwritten notes made by another senior FBI official at the time, whom Baker briefed about the conversation with Sussmann, that support the notion that Sussmann said he was not there on behalf of a client. It is not clear whether such notes would be admissible at trial under the so-called hearsay rule.
A lawyer for Baker declined to comment.