Democracies cannot survive without public trust. Citizens must be confident that their elected officials represent their interests, at least in broad terms, and are not corrupt, self-dealing con men. They must believe the courts dispense justice fairly and equally, that there’s not one set of rules for insiders and another for everyone else. They understand that complex societies require bureaucracies and that bureaucracies are inherently non-democratic, but they want the bureaucracies’ rules and procedures to be subject to laws, passed by elected officials, overseen by them, and applied evenly. For transparency, they depend on newspapers and television and, in recent years, on websites and social media.
These essential elements of stable democracy are encompassed by two words: “trust” and “fairness.” For democracies to thrive, citizens must trust the four core elements of their government: the executive, legislative, and judicial branches, and the bureaucracies which pass and implement most of the day-to-day rules. A crucial element of that trust is the belief that each individual gets a fair shake. That means he won’t be arrested or fined because of the color of his skin or his religion. If he has to go to court, it means he’ll get a fair trial, with an even-handed judge and a jury of his peers. He won’t be pilloried by a biased judge who doesn’t like his politics. His case will be decided by a jury that weighs the evidence without prejudice. The public also has a right to see that trials are handled fairly, without bias.
Every one of those basic tenets was violated in Michael Sussmann’s trial for lying to the FBI. We know now that a Washington, DC jury has found him not guilty, though it is still unclear whether they believed he didn’t lie, or the government didn’t prove it, or it didn’t matter to a politically biased FBI, which was determined to investigate anything connected to Donald Trump. We also know something more: the whole case is drenched in the sulfurous smell of the Washington Swamp.
First, we know Sussmann, a private lawyer for political operatives, had special access to senior FBI officials because he once worked at the Department of Justice and maintained friendships with those officials. He still had a “pass” to get in the building. He could dash off a text message and get a meeting almost immediately with the Bureau’s top lawyer, James Baker. Later, when the FBI circulated Sussmann’s allegations, falsely showing Trump was communicating with the Kremlin, they referred to Sussmann as the “Department of Justice.” Under oath, an FBI official called that a “typo.” Yeah, sure.
Second, there is very powerful evidence that Sussmann deliberately lied to the FBI’s top lawyer. The text message to Baker, asking for the meeting, explicitly said Sussmann was coming as a good citizen and was not representing a client. Baker said Sussmann repeated that claim at the beginning of their meeting. Baker, in turn, communicated that assurance to several FBI officials he met immediately after the Sussmann meeting. But Sussmann was lying. In that meeting, he was representing Hillary Clinton’s campaign and aiding another client, Rodney Joffe, a computer scientist who expected to become Clinton’s cyber czar.
We know Sussmann had a client because he billed the Clinton campaign for the two thumb drives he turned over to the FBI at that meeting. It is clear (but not absolutely certain) that he billed the Clinton campaign for the meeting with Baker. The sliver of doubt is that Sussmann did not specifically list the FBI meeting in billing the campaign for his work that day. He listed only a “confidential” project, which is how he repeatedly billed his work for the Alfa-Bank-Trump fable. We also have his testimony, under oath, to a congressional committee that he was representing a client in that meeting. In short, the evidence he lied is overwhelming.
The evidence that Sussmann’s lie affected their investigation is strong but debatable. Any uncertainty here is crucial since the prosecution not only has to prove Sussmann lied but that his lie affected the Bureau’s work or had the potential to do so. That’s a low standard, but Sussmann’s team says the government didn’t meet it.
The defense makes a devastating point for anybody worried about corrupt law enforcement. They note that the FBI’s cyber experts quickly recognized that the white papers and thumb drives Sussmann gave Baker were garbage. They might fool someone without any cyber expertise but not a real expert. When the FBI learned that Sussmann’s materials were worthless, the Bureau should have immediately ended its investigation based solely on that material. They didn’t. Baker testified that his bosses on the Seventh Floor (FBI director James Comey and his number two, Andrew McCabe) were fired up by Sussmann’s materials and authorized a full-scale investigation of the Trump-Alfa Bank connection. When the Bureau asked the Chicago field office to look into the internet data Sussmann had given them, FBI leaders specifically prohibited the field agents from speaking to anyone who generated the data for Sussmann. The FBI’s approach was fatally biased, corrupt, and partisan — the now-familiar hallmarks of Saint James Comey’s tenure at the Bureau.
Bias like that at the nation’s top law-enforcement agency is noxious for democracy — and it may well have played a crucial role in this trial. Sussmann’s defense tried to persuade the jury that, even if Sussmann lied, it didn’t influence the FBI investigation. Why? Because the Bureau was already so vehemently opposed to Trump that it didn’t need influencing to launch his investigation. The defense’s best case was that the FBI would have launched the investigation anyway and simply used the Sussmann’s threadbare materials as an excuse.
The FBI was undoubtedly biased (and perhaps incompetent) here, but it should have been possible to persuade a fair-minded jury that Sussmann’s lie didn’t have some influence. But was this a fair-minded jury? There is sickening evidence that the presiding federal judge, Christopher Cooper, seated a jury he knew would strongly favor Sussmann, not because they liked Sussmann but because he represented Hillary Clinton and opposed Donald Trump. How did Judge Cooper tilt the scales of justice? By improperly seating three jurors who donated to the very candidate Sussmann was trying to help. Those jurors said they could be fair, but there is no way they should have been seated. Special Counsel John Durham’s team argued they should be excluded for “cause.” Durham was right; Cooper was wrong, and the only way to explain his decision is his own political bias.
This whole case was about a lie that was meant to help Hillary Clinton and hurt Donald Trump. That means there was a partisan political element at the very heart of the case. That would pose an uphill battle for Durham in any case since the trial was held in Washington, DC, where Trump received almost no votes. He is reviled there. Knowing that, the judge should have leaned over backwards to make sure the jury wasn’t overtly partisan. He did the opposite, and that’s unconscionable. He not only seated three donors to Clinton, he seated another who donated to Alexandria Ocasio-Cortez. AOC may not have been a friend of Hillary’s but she was even more staunchly opposed to Trump. All four of those potential jurors should have been excluded.
The stench surrounding the judge, the defendant, the biased jury, and the FBI ought to outrage the public, no matter who they supported for president. In fact, the public has been kept in the dark throughout the trial because the media refuses to report on it. (Expect them to now shout the “not guilty” verdict from the rooftops because it supports their viewpoint.) When James Baker gave his devastating testimony, all three television networks devoted zero minutes to the trial. The New York Times said nothing. They did the same thing the next day, when Hillary Clinton’s campaign manager dropped the bombshell in court that Hillary herself authorized the campaign to spread the Alfa-Bank-Trump story to the media. Again, crickets.
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That media silence is an outrage all its own. Durham’s team presented evidence of a massive, well-coordinated, and illegal dirty trick, concocted by the Clinton campaign, fed into the FBI, and promulgated by a credulous, partisan media, eager to report that the FBI was “investigating the Trump-Russian connection.” Actually, there were at least two prongs to Hillary’s dirty tricks. The second was the Steele Dossier. As false as the Alfa-Bank story, it, too, was pitched to the FBI, Department of Justice, State Department and, of course, the friendly media. The goal was to smear Trump before the 2016 election and, after his unexpected victory, to prevent him from governing.
Despite Sussmann’s not-guilty verdict, his trial revealed the rank odor of Washington politics. It suffuses our courts, our law enforcement bureaucracy, and the mainstream media. It reeks of insider dealing and extreme partisan bias. That stench should alarm anyone concerned about America’s ability to govern itself democratically. That governance requires trust in our institutions, including confidence our courts can resolve legal issues with fairness and integrity. Who could look at the Sussmann Affair and retain that confidence?