Former FBI official recounts alleged lie at heart of Sussmann trial

“I’m 100 percent sure he said that in the meeting,” Baker said of the one-on-one session at FBI headquarters. “My memory on this point, sitting here today, is clear.”

Jurors also saw a text message that Baker said she discovered on her phone earlier this year in which Sussmann requested the meeting on a “time-sensitive” issue and said “I would be coming on my own, not in name of a client or company: wants to help the Office”.

However, the indictment does not accuse Sussmann of lying in a text message, only in the in-person meeting.

And Baker admitted Thursday that he had made an “inconsistent” statement about the critical fact of Sussmann’s remarks there on at least one previous occasion, and that his memory of the point had evolved over time. At the end of the day, Baker’s overall testimony provided important material for Sussmann’s defense and perhaps enough uncertainty to produce the reasonable doubt that could lead to Sussmann’s acquittal.

Durham prosecutors contend that Sussmann’s alleged lie was significant because revealing any role the Clinton campaign or the DNC had in the material or the decision to send it to the FBI would have changed how investigators responded to the information.

A member of Durham’s team told jurors in opening statements that Sussmann’s actions were part of an effort to use the FBI as a “political tool” to launch an investigation that would damage Trump politically by producing a “surprise of october”.

Jurors have already heard testimony that key FBI experts concluded in less than a day that the evidence did not support the existence of the alleged data link between a server with Donald Trump’s name on the address and another server operated by Alpha. Bank, a Russian bank. bank owned by allies of Russian President Vladimir Putin.

However, Sussmann is not charged with submitting false data or reports to the FBI, only with alleged false denials about his clients. And Sussmann’s defense has argued that he had no reason to doubt the person who brought him the data, Rodney Joffe, a highly respected technology specialist and business executive in the Internet field.

So far, the Durham team has produced considerable evidence from law firm billing records and testimony that investigators working for Clinton and the DNC were keenly interested in the alleged link to Alfa Bank and that Sussmann worked. at the same law firm that handled those matters for Democratic caucuses. , PerkinsCoie.

However, the case that Sussmann was acting on behalf of those entities when he went to the FBI remains largely circumstantial.

One point prosecutors made Thursday was showing jurors a letter to the editor from a top lawyer for Perkins Coie that denied that Sussmann had met with the FBI on behalf of the Clinton campaign or the DNC, but appeared to acknowledge that the meeting It was for another client. .

“Mr. Sussmann’s meeting with FBI General Counsel James Baker was on behalf of a client with no connections to the Clinton campaign, the DNC or any other client of the Political Law Group,” Perkins’ managing partner wrote. , John Devaney, in the October 2018 letter published in the Wall Street Journal.

Jurors already heard that Joffe and his firm Neustar were clients of Sussmann, so Devaney’s statement suggested that Sussmann was acting on his behalf and that he may have lied if he told Baker or others that he was not acting on his behalf. Name.

But defense attorney Sean Berkowitz pointed out that it was Sussmann who texted Baker a photo of Devaney’s letter to the Journal, a seemingly odd act if Sussmann knew it contained a falsehood Baker might well recognize.

“Any idea why Mr. Sussmann would send you, to the best of your knowledge, something that he says contradicts what he told you a couple of years earlier?” Berkowitz asked Baker during cross-examination Thursday afternoon.

“I don’t know,” Baker said. “You have to ask him.”

Another mystery jurors learned Thursday was how and why top FBI and Justice Department officials apparently received a report in March 2017 that the information Sussmann provided to the FBI came from an attorney representing a client, if Sussmann told Baker otherwise.

Berkowitz showed Baker and the jury notes that department attorney Tashina Gauhar took at that session that indicate a client’s role in presenting the information.

“’Attorney’ presented to the FBI on behalf of his client…. He also advised others in the media. NYT,” Gauhar wrote.

Baker was present at that meeting, but said Thursday that he didn’t recall the “client” issue.

Berkowitz asked Baker why, if someone said in the meeting that the Alfa Bank information did not come from a lawyer representing a client, he did not correct them on the spot, since he was the one who first received the information in the FBI. .

“Do you remember standing up and saying, no, you were wrong, he didn’t have clients?” the defense attorney asked.

“No, I don’t remember doing or thinking that,” Baker said.

Both the prosecution and defense also argued with Baker that he had been the focus of a separate investigation by Durham into an alleged leak that appears to have involved a 2016 New York Times report on broad-based email surveillance. that Yahoo made at the request of the United States government

Baker provided scant details about the investigation, but confirmed that Durham led it, saying it involved a telephone conversation he and a senior FBI public affairs official had with a reporter “during which I made an authorized release of information that I understood at that time not to be classified.”

Baker said it was his understanding that the disclosure had been approved in advance by the FBI director and the director of National Intelligence, but other witnesses gave conflicting or uncertain accounts. Ultimately, no action was taken, but the investigation was not formally closed until Durham received a new assignment in 2019 to investigate the origins of the FBI’s Trump-Russia investigation.

Baker said his possible responsibility in the earlier investigation had not influenced his responses to Durham in the inquiry that led to Sussmann’s prosecution because he had a duty to answer truthfully and because Durham’s review of the alleged leak was essentially complete when was passed to the new investigation related to Russia.

However, Sussmann’s defense showed the jury a text in which Baker seemed to lament Durham’s new portfolio.

“Now I can be investigated for another year or two by John Durham! Lovely,” Baker wrote to a friend, Ben Wittes, in May 2019.

Jurors also saw another candid text message Baker sent to Sussmann in October 2018, declaring that Baker’s questioning by a House committee investigating issues related to Trump and Russia “sucks.” Baker said she was caught off guard during the contentious two-day session as Republican lawmakers began to focus on Sussmann’s visit to air Alfa Bank’s claims.

“It sucked. It was terrible. It sucked on multiple levels,” Baker said Thursday, apparently shaken to have to recount the experience. “As a citizen of the United States, it is upsetting and appalling to see members of Congress behaving the way they were behaving. It was very upsetting for me.”

Berkowitz asked Baker if being called to testify in the current case against Sussmann, whom Baker called a friend, was also a “terrible” experience.

“This is more orderly,” Baker said, gesturing to his chair. “It’s terrible, but neat.”

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