Even earlier than the Sussmann indictment, Durham’s investigation was an enigmatic and curious effort. All through 2020, Trump and Barr teased the potential for explosive developments previous to the election that by no means materialized, and the political stress to seek out one thing seems to have prompted the resignation of a senior prosecutor on Durham’s workforce. Nonetheless, in October, Barr designated Durham as a “particular counsel” in an obvious (although legally nonsensical) effort to entrench Durham if Biden gained the election.
The one tangible results of the Durham investigation was the 2020 prosecution of a low-level FBI lawyer named Kevin Clinesmith that ought to have raised far more concerns concerning the conduct of Durham and his prosecutors than it did on the time. Clinesmith altered an inside e-mail whereas engaged on an utility to the Overseas Intelligence Surveillance Courtroom in 2017 to surveil Trump marketing campaign adviser Carter Web page. Thanks largely to the conservative media’s amplification of Durham’s workforce — which, amongst different issues, claimed that Clinesmith had been motivated by anti-Trump bias — many individuals took this to imply (a) that the altered e-mail had by some means misled the court docket into approving the surveillance of Web page and (b) that Clinesmith had intentionally tried to deceive the court docket.
Neither of these issues was true. Durham’s team conceded on the final minute that there was “no indication” that the e-mail, which involved a comparatively slender factual level, had an impact on something that occurred throughout the FBI or on the FISC. And the presiding decide ultimately concluded that Clinesmith was not “making an attempt to realize” something improper, that he really believed what he had written, and that he was merely “saving himself some work” by altering the e-mail in query.
This isn’t to excuse the conduct — Clinesmith took full duty for it when he pled guilty — but it surely was blown wildly out of proportion by Durham’s prosecutors and plenty of right-wing commentators. In a much less politically charged context, there’s a superb likelihood that Clinesmith, who in the end obtained probation, by no means would have been prosecuted to start with.
The indictment of Sussmann seems to replicate a equally questionable train of prosecutorial discretion.
Sussmann is charged with mendacity throughout a September 2016 assembly with Jim Baker, the FBI’s normal counsel on the time, whereas he urged Baker to analyze whether or not Trump’s firm had maintained a secret pc server to speak with a Russian financial institution. The indictment alleges that Sussmann “said falsely that he was not performing on behalf of any shopper” and “was conveying the allegations as a superb citizen” when, the truth is, he was doing in order a part of his legislation agency’s work for the Clinton marketing campaign.
This might have been specified by a couple of pages, however Durham’s workforce produced a 27-page indictment that implies that what actually offended them was the way in which by which the underlying technical evaluation that Sussmann supplied Baker was ready and disseminated on the time. The indictment basically alleges that the Clinton marketing campaign used its attorneys to push a technical evaluation to each the FBI and the media that had been ready by individuals who knew that it was rubbish, and that they did this in an effort to promote the “narrative” that Trump had shady ties to Russia.
The not-so-subtle implication is that Sussmann himself knew that the evaluation was junk at the same time as he pushed the FBI to analyze, however the indictment doesn’t really come out and say so. It might have been tough for prosecutors to definitively set up this someway since Sussmann’s communications on this level might have been privileged. This seems to have left Durham’s workforce with Sussmann’s alleged misrepresentation about who he was representing when he met with Baker.
Even on that slender idea, the case in opposition to Sussmann suffers from some significant problems. For one factor, it’s removed from clear that the alleged misrepresentation even occurred: Baker attended the assembly alone and later gave testimony to Congress about what Sussmann stated that’s arguably inconsistent with the indictment. Additionally, the authorized threshold for materiality may be very favorable to the federal government, however as a sensible matter it’s onerous to consider that the alleged misrepresentation mattered a lot, notably for the reason that bureau seems to have recognized that Sussmann and his agency labored on behalf of the Democratic Social gathering and the Clintons. The case was additionally filed in D.C. — not precisely a Trump-friendly jurisdiction — so it’s not onerous to ascertain a jury acquitting Sussmann if he takes the case to trial, which additional suggests the indictment might have been meant extra for the court docket of public opinion than the rest.
All of this has had the distinct look of an effort on the a part of Durham’s workforce to scapegoat Sussmann for doubtlessly unseemly conduct on the a part of the Clinton marketing campaign that they don’t seem to be ready to criminally cost — and that they might by no means be capable of cost — in a lot the identical manner that they compelled Clinesmith to shoulder public duty for the Web page surveillance. It stays to be seen whether or not the most recent subpoena to Sussmann’s agency will really flip something up, however not less than from the skin, the trouble appears suspiciously like a proverbial fishing expedition. These issues have been additional compounded on Thursday, when each CNN and the New York Times revealed tales that steered that the allegations within the Sussmann indictment in regards to the technical evaluation have been primarily based on a extremely selective — and arguably disingenuous — characterization of related emails.
It’s attainable that Durham’s workforce might have uncovered a professional media and political scandal — assuming that the Clinton marketing campaign did use Sussmann to supply the FBI with a shoddy evaluation whose principal objective was to instigate a federal investigation which may discredit Trump within the days earlier than the election, whereas some journalists have been, at finest, too credulous of political operatives — besides, Durham is just not alleged to be a taxpayer-funded media ombudsman or political reporter. If he desires to air out supposed info that he believes are of professional public concern — however which are of questionable relevance to an precise prison prosecution — he can put them in the public report that he’s supposed to supply, and the general public can weigh them accordingly.
Within the two-and-a-half years and millions of dollars spent since his investigation started, Durham has but to establish any misconduct of real consequence throughout the FBI. We discover ourselves within the surreal place of getting an ongoing prison investigation in regards to the 2016 election, whereas, on the identical time, the DOJ beneath Garland seems to be sitting idly by as information continues to accumulate that gives further reason to analyze the conduct of Trump himself within the wake of the 2020 election.
