Members Only | September 21, 2021 | Reading Time: 3 minutes
The Durham indictment isn’t about justice. It’s about sending a ‘stop snitching’ message
Snitches might get indicted.
Yeah it might be all that you get
Yeah I guess this might well be it
But heaven knows I’ve tried
—“Ted Lasso” theme
Last week, Special Counsel John Durham secured an indictment against an obscure cyber-lawyer and Democratic insider named Michael Sussmann for allegedly lying to the FBI about who his clients were when he relayed a tip about possible digital communication between the Trump Organization and Russia. Durham was appointed by Donald Trump to delve into the origins of the Trump/Russia investigation. Sussmann’s indictment appears to be the culmination of that probe, which has already dragged on for more than two years.
A grand jury only hears the prosecution’s side of the story. Hence the truism that a grand jury will indict a ham sandwich. With the five-year statute of limitations running out, Durham sought to indict while the indicting was good. At least now he can say he got a Clinton lawyer. This means a lot to the QAnon base, but it won’t mean much to a jury.
The indictment is also an excuse to air details about the Clinton Camp’s rather tame opposition research efforts. These details feed Trumpland’s narrative that Obama, the Democrats and Big Tech spied on him in 2016.
Sussmann is charged with lying to FBI general counsel Jim Baker in a one-on-one meeting during the dying weeks of the 2016 presidential campaign. Baker didn’t take notes. One of his underlyings later took notes on Baker’s recollection of the conversation. Those notes say that Sussmann wasn’t acting on behalf of any client, but the next words are “works for the Democratic National Committee and the Clinton Foundation.” So Baker knew that Sussmann was coming to him from the beating heart of the Democratic establishment. It’s not like he was pretending to be some guy off the street with a bunch of white papers about the Trump Organization and Alpha Bank. Such an act wouldn’t have been very convincing to Baker, who took the meeting with Sussmann on the basis of their long-term professional acquaintance.
The whole case hangs on whether Baker correctly understood and accurately remembered what Sussmann told him. Sussmann denies that he lied to Baker, and we already know that Baker’s memory of that exchange is tenuous. Baker testified in 2018 that he didn’t remember whether Sussmann said he was there on behalf of any client. The standard in a criminal case is proof beyond a reasonable doubt, and here’s reasonable doubt staring us in the face: The only two people who were at the meeting disagree about what was said, and one of them has already testified under oath that he doesn’t remember. This case is so flimsy that it raises serious ethical questions about why Durham is bringing it at all.
In any case, lying to the FBI would only be a crime if the lie were material to the investigation. A material lie is a claim that would tend to influence the course of an investigation. But there’s no evidence that the FBI would have done anything differently if they’d known that Sussmann was representing the Clinton campaign and some tech executive, as opposed to the DNC and the Clinton Foundation. At least, one would hope the FBI wouldn’t have acted any differently. If the government is implying that the FBI would have blown off a perfectly good tip because it came from someone in the Clinton camp, that’s a much bigger problem.
You might wonder why Durham bothered to seek an indictment for a case that’s likely to self-destruct in a courtroom. No doubt, he felt pressure to justify the existence of his probe by delivering an indictment of a senior figure from ClintonLand. This prosecution also sends a strong “stop snitching” message: Don’t give tips to the FBI about a Republican presidential campaign’s possible misdeeds because you’ll be the one facing federal charges.
The indictment is also an excuse to air details about the Clinton Camp’s rather tame opposition research efforts. These details feed Trumpland’s narrative that Obama, the Democrats, and Big Tech spied on him in 2016. This indictment has nothing to do with justice. It’s all about feeding Trump’s “stabbed in the back” narrative.
Lindsay Beyerstein covers legal affairs, health care and politics for the Editorial Board. An award-winning documentary filmmaker, she’s a judge for the Sidney Hillman Foundation. Find her @beyerstein.