Former FBI counsel testifies on 2016 Trump probe in Durham case
Washington – When noted cyber attorney Michael Sussmann came to FBI headquarters in September 2016 to hand over now-debunked data purportedly linking Trump Tower to Russia’s Alfa Bank, the FBI’s general counsel, James Baker, said the information concerned him, and he viewed it as a “potential national security threat,” Baker told a Washington, D.C. jury on Thursday.
Sussmann is now on trial for lying during that 2016 meeting, accused by special counsel John Durham of hiding his alleged connection to Hillary Clinton’s 2016 presidential campaign and the technology executive who provided him the data. He has pleaded not guilty and will call witnesses next week to help him mount a full defense against the single charge of lying.
Prosecutors say Sussmann’s lie began the night before the meeting, on Sept. 18, 2016, when he texted Baker to request the meeting. He allegedly wrote, “I’m coming on my own – not on behalf of a client or company,” text messages revealed during this week’s trial read. “[W]ant to help the Bureau.” But Durham, who was appointed during the Trump administration to investigate accusations of misconduct in the Trump-Russia investigation, alleges Sussmann came forward not to “help the Bureau,” but to help two clients who had hired his law firm, Perkins Coie.
The Washington, D.C. law firm was hired by the Clinton campaign and Sussmann’s former colleague Marc Elias, who was the campaign’s top lawyer. He testified Wednesday.
Sussmann represented the tech executive, Rodney Joffe, who allegedly passed him the Alfa Bank data from cyber analysts. According to the indictment against Sussmann, Joffe had also expressed interest in receiving a job in a possible Clinton administration.
“[Sussmann] said, ‘I’m not here on behalf of any particular client,” Baker recalled, in testifying about Sussmann’s statement to him at that 2016 meeting at FBI headquarters. “I’m 100% confident that he said that in the meeting.”
Under direct examination on Thursday, Baker told the jury Sussmann was a “friend,” and he had no reason to doubt representations about his motives.
Sussmann handed over memos and thumb drives containing the data, Baker said, which alleged there was some “surreptitious” connection between Trump and Russia. The FBI ultimately found that there was insufficient evidence to support that allegation , but Durham’s team argues that Sussmann’s lie to Baker about his clients cloaked the allegations in legitimacy and caused investigators to take them more seriously than they may have if Sussman had disclosed the political connections.
“He was coming to see me as a good citizen,” Baker said of Sussmann. “I thought that he would want to help the government. That’s the kind of person that I thought him to be.”
“He didn’t ask me to do anything…he said to take whatever action you think is appropriate,” Baker said. However, Sussmann did notify Baker that a story on the data was to be published by a news outlet, later revealed to be The New York Times, which added urgency to the matter.
“If we’re going to do something, we need to get going,” Baker said in court, explaining that Sussmann subsequently helped him by identifying the reporter who would be writing the story in an attempt to stop it from being published.
When asked by prosecutors whether he would have taken the meeting with Sussmann had he known about the alleged clients, Baker replied, “I don’t think I would have” because the logistics, prioritization, and “legal review” of the data would have been different if Sussmann met on behalf of a client.
During cross-examination, Baker confirmed he was not testifying about the validity of Sussmann’s client claim, but describing the events as he remembered them. He also confirmed that he was under investigation by the Durham team as far back as 2018.
Baker said his confidence in Sussmann at the time of the 2016 meeting and the urgency of the matter prompted Baker to “immediately or within minutes” bring the Alfa Bank data to the attention of top cybersecurity and intelligence officials at the FBI, who launched an investigation, he testified Thursday.
One of those officials, Assistant Director of the FBI Counterintelligence Division Bill Priestap, took notes from Baker’s September 2016 account. The handwritten pages revealed Sussmann apparently “said not doing this for any client,” but they did note he represented Democrats.
Baker told prosecutors, “We could not confirm that there was a suspicious communications channel,” but his meeting with Sussmann – the focal point of the two-week trial – led to problems in the public and in the halls of Congress.
He and Sussmann were attacked for being “coup plotters and traitors,” Baker said of the fallout around the Mueller investigation and the Trump-Russia probe. “It sucked at multiple levels…It sucked because I felt as though I had dragged Michael into a maelstrom by discussing him in the first meeting.”
But the key issues for defense attorneys at trial on Thursday were neither the purported Trump-Russia data nor the fallout, but when exactly Baker knew of Sussmann’s representation of Joffe and his connection to the Clinton campaign and alleged lapses in his memory.
Prosecutors showed the jury a key FBI document memorializing a March 4, 2022, meeting with investigators in which Baker said Sussmann’s possible representation of a client would not have affected his handling of the meeting.
According to Baker, the meeting with investigators just months before the trial came after he discovered the Sept. 18, 2016 text from Sussmann.
When asked about that more recent representation of Sussmann’s claims, Baker responded, “As I think about it today, that that is not accurate,” although he did admit he was aware of Sussmann’s past legal representation of the Democratic National Committee hack of 2016.
Wielding a white dry-erase board, defense attorney Sean Berkowitz probed Baker’s memory about various meetings and handwritten notes potentially indicating Sussmann’s connections to the Clinton campaign and Joffe were apparent to investigators handling the Alfa Bank allegations.
“It’s hard to remember events of a long time ago isn’t it,” Berkowitz asked Baker, attempting to poke holes in his memory using transcripts of Baker’s own congressional testimony from 2018. “It depends on what you are talking about,” Baker responded.
Baker testified he continued to communicate with Sussmann via text in the years following the 2016 meeting, even attempting to get a job at Sussmann’s law firm. He is now deputy general counsel for Twitter.