In defence of Michael Sussman

It's an abuse of the criminal justice system for political prosecutions

Michael Sussman is a former Hillary campaign lawyer who is being tried for “lying to the FBI”. I feel it’s an unjust prosecution, political payback by Trump against his enemies.

Here are the facts of the case. In 2016, during the Hillary-v-Trump presidential campaign, some techies scoured the Internet and found some suspicious “DNS data” hinting at secret communications between the Putin-aligned Alfa Bank in Russia and the Trump Organization. These techies brought the data to Michael Sussman, who worked for the Hillary campaign.

Sussman worked with other Hillary lawyers (e.g. Marc Elias) who were working on the infamous Steele Dossier. While detractors insist on drawing a connection, for the most part, the Sussman Affair has virtually nothing to do with the Steele Affair.

This “DNS data” is crap. It came from researchers who monitor DNS data in order to keep DNS running smoothly, and to protect the Internet from hackers. They (mis)used their access to raw DNS logs to search for dirt on Trump. They found something suspicious, lookups by Alfa Bank (in Russia) for a name “mail1.trump-email.com”. They insist this was evidence of secret communication and a secret relationship that Trump denied on the campaign trail.

As an expert in this particular subject, I know the claims are bogus. The researchers deliberately hid a lot of extenuating data. Nobody has a convincing explanation for why these lookups actually happened, but among the options, a conspiracy between Trump and Alfa Bank doesn’t hit the Top 10.

But Sussman isn’t being accused of trying to spread a hoax, he’s accused of only one misstatement: he claimed he wasn’t working for a client when reporting this to the FBI, but in fact billed a client (Hillary) for the meeting.

The indictment lays out the key facts. The FBI took notes of the meeting, and wrote down the following information. It’s clear they knew he worked for Hillary in general, the question was only about this specific meeting, where he claimed to be there as a concerned citizen.

The indictment shows that afterwards, he nonetheless billed the Hillary campaign for this meeting:

As far as I can tell, these are the only relevant facts of the case but they don’t really matter. John Durham, the prosecutor, has been making a ton of legal filings laying out a case for a massive conspiracy against Trump. He’s trying to tie this “DNS data” in with the “Steele Dossier”, and everything else. The trial appears to be really about whether the “DNS data” was a lie or a hoax, something that legally isn’t charged, rather than about the statement acting for a client.

Durham was appointed by Trump precisely for this sort of political payback. Shortly before leaving office, Trump appointed Durham as a “special counsel” to investigate the “witch hunt” against Trump. He’s effectively untouchable, nobody can stop him.

If you think the Mueller investigation was justified, then of course that means it’s John Durham who is pursuing a “witch hunt” against Trump’s critics. If you think Mueller’s investigation was political corruption, then of course John Durham is righting the great wrong.

Indeed, Durham is accusing Sussman of what many Trump associates got convicted for, “lying to the FBI”. It seems like a sufficient vague charge that could be applied to anybody who simply talks to the FBI. The FBI also seems skilled at railroading people into it, so that they can prosecute something easier than the real crime, or because they are trying to turn that person into a confidential informant.

But regardless of the validity of the Mueller investigation, Durham’s investigation of Sussman has gone crazy. It’s not about whether Sussman wins or loses the case. It’s about using this case to expose all sorts of information, as “filings” to the court rather than publishing them as some other vehicle.

For example, there’s this “whitepaper” drafted by the techies who gathered the DNS data. I’ve heard about it’s existence for 6 years. Finally, I was able to read it, because it was submitted as an exhibit in the trial.

And it’s still not relevant to the question above, whether Sussman lied about whether he was there on his free time or billing a client.

In conclusion

I don’t know if Sussman’s guilty of the actual crime. I tend to think not, for the same reason I’m suspicious about some of the prosecutions of Trump loyalists on the same charge.

But I do believe the case is more than prosecuting Sussman for a simple misstatement, it’s about building a case for the Trumpist faithful who believe he was the victim of a witchhunt. So much of this case isn’t about this case. And that seems a miscarriage of justice, a misuse of the criminal justice system to further a political agenda.

Some fact checking

This post is really about these two tweets from Rep. Jim Jordan and Elon Musk (pbuh). They get the facts wrong.

• Sussman was a Hillary campaign lawyer, but he didn’t “create” the “DNS data”. He was given it by somebody else.

• No Hillary campaign funds were used to create the “DNS data”, it was created by people unrelated to the Hillary campaign.

• The “DNS data” wasn’t an “elaborate hoax”; their conclusion is faulty but as far as anybody can tell, the data is real and not faked.

• It really has nothing to do with the Steele dossier.

• It wasn’t sold to the media.

• The media hasn’t lied about it — and most have been skeptical of it even as a few members of the media reported it.