If we were to just look at the facts of the case against Michael Sussmann, they would all appear to support the charge against him: that he lied to the FBI when he said that he wasn’t working for anyone, when in fact he was working for the Clinton campaign. He even wrote a text to FBI General Counsel James Baker, specifically saying that he wasn’t coming in to see him on behalf of a client.
Former federal prosecutor Andrew McCarthy points out that Judge Christopher Cooper, an Obama appointee, made a finding in this case which is likely to harm the case.
That text is what I mentioned. But the judge just ruled on Thursday that the prosecution can’t argue in its summation that the text is the false statement with which he is charged. In the text, Sussmann said, “Jim — it’s Michael Sussmann. Please let me know if you have anything urgent (and important) that I should discuss. Are you available for a brief meeting tomorrow? I’m coming on my own — not on behalf of a client or company — want to help the Bureau. Thanks.” That would appear to be the smoking gun.
But the problem is that they didn’t have the text when they filed the indictment, it wasn’t part of the alleged evidence so they weren’t alleging that was the false statement. Baker claims he didn’t find the message until six months after the indictment was filed, so he didn’t turn it over to them before then. But because it was past the statute of limitations by the time that was found, the Durham team who might ordinarily add it as a separate charge in a superseding indictment couldn’t do that.
That means that their main evidence is James Baker’s somewhat sketchy memory. Because he felt he was talking to a “friend,” he didn’t follow the normal protocol that one might if he was an FBI agent doing an interview–that would be one agent conducting the interview, while a second agent would be taking notes.
But that said, that doesn’t mean that the text can’t be considered by the jury.
However, the fact that the text was not removed completely from the case does not make it unimportant. The contrary is true. Judge Christopher Cooper allows prosecutors to still argue that the text supports Baker’s claim that Cooper was not representing him at the September 19, 2009 meeting. Prosecutors will point to the text right before the meeting, as well as Baker’s telling other FBI officials right after the meeting that Sussmann had said he was not representing a client. Based on that, Durham’s team will argue that the proof of Sussmann’s false statement is convincing.
Sussmann will be charged with making a false statement based only on the text. However, this is not allowed by prosecutors. The jury has to be convinced that Sussmann made a false statement during the Baker meeting in order for him to be convicted.
While that makes things tougher, the jurors aren’t blind, and while they’re being told they can’t consider it as THE false statement, saying that it can be considered as “strong evidence” that Baker is correct about what Sussmann said allows them to consider it and know the truth. Now the real question is whether they will be able to see it clearly and unmasked.
Unfortunately, as we have mentioned in the past, that’s a question. Jonathan Turley from George Washington University, professor of law at George Washington University, stated on Fox Thursday that Michael Sussmann’s jury is also a question.
TURLEY: “I mean, he is facing a jury that has three Clinton donors, an AOC donor, and a woman whose daughter is on the same sports team with Sussmann’s daughter. With the exception of randomly selecting people out of the DNC headquarters, you could not come up with a worse jury” pic.twitter.com/RHqen6AMAc
— Benny Johnson (@bennyjohnson) May 26, 2022
He’s facing a jury that has three Clinton donors, an AOC donor and a woman whose daughter is on the same sports team as Sussmann’s daughter. There is no worse jury than the one you chose randomly from DNC headquarters.
That doesn’t fill me with a lot of assurance that there will be a fair verdict, even given the evidence. You never know with juries; if they are viewing the evidence honestly, it’s all there. But that’s not good when you need to have all the jurors finding beyond a reasonable doubt that Sussmann made a false statement.
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