In September, Special Counsel John Durham asked a grand jury to indict Perkins Coie lawyer Michael Sussmann for allegedly lying to the FBI. Durham’s case was built around the claim that Sussmann had lied to the FBI when he met with FBI General Counsel Jim Baker in 2016.

The purpose of the meeting was for Sussmann to push the claim that Trump had a secret back-channel to Russia through a computer connection with Russia’s Alfa Bank. The Alfa Bank story was false. The FBI eventually concluded the secret connection was just a computer which had once been used to send spam for Trump’s hotels. But Durham’s indictment claims Sussmann lied during that meeting with Baker, claiming he wasn’t acting on behalf of any client. In fact, he was working for the Clinton campaign. We know this because he billed the campaign both for the prep work ahead of the meeting with Baker and for the meeting itself.

The 2016 meeting between Baker and Sussmann wasn’t recorded but Durham’s indictment cites notes taken immediately after the meeting by the Assistant Director of the Counterintelligence Division. He wrote next to Sussmann’s name “said not doing this for any client.”

Yesterday, the NY Times reported on some new evidence which appears to back up the claim that Sussmann lied to the FBI:

Mr. Sussmann, via his lawyers, denied that he told Mr. Baker that he had no client, while maintaining he was there on behalf of only the executive, not the campaign.

One piece of newly disclosed evidence, described in a filing by Mr. Durham’s team on Tuesday evening, consists of handwritten notes by an F.B.I. lawyer to whom Mr. Baker spoke about the meeting that day. The Durham filing quoted the notes as saying “no specific client.”

That evidence is similar to another set of handwritten notes previously cited in the indictment by another F.B.I. official who also spoke to Mr. Baker after the meeting.

Sussmann’s lawyers have pointed out that Baker himself gave two conflicting statements about what was said during the 2016 meeting:

In 2019 and 2020 interviews, Mr. Baker recalled the interaction in two different ways that each clashed with the indictment’s version. In the first, he said Mr. Sussmann told him the cyberexperts who developed the Alfa Bank theory “were his clients.” In the second, he said Mr. Sussmann never said if he was representing anyone and Mr. Baker didn’t ask, but assumed he had no client.

Durham’s team doesn’t deny that Baker said those things but points out that he said them years later without refreshing his recollection. Now that he has done so, Baker says he’s certain Sussmann told him he had no client. And Durham adds there’s contemporaneous evidence that Sussmann told the same story to the CIA as well:

…as the defendant is aware from discovery, both of those interviews occurred years after the events in question, and Mr. Baker made these statements before he had the opportunity to
refresh his recollection with contemporaneous or near-contemporaneous notes that have been provided to the defense in discovery. Indeed, the defendant’s motion entirely ignores law
enforcement reports of Mr. Baker’s subsequent three interviews with the Special Counsel’s Office in which he affirmed and then re-affirmed his now-clear recollection of the defendant’s false
statement…

Finally, the defendant’s motion also ignores the Government’s production of a memorandum that two employees of another agency (referred to in the Indictment as “Agency-2”) drafted after their February 9, 2017 meeting with the defendant on a matter related to the allegations the defendant brought to the FBI. That memorandum similarly reflects that the defendant told these employees that he was not representing “a particular client.” In sum, discovery produced to date reflects that the recollections and/or contemporaneous records of five separate government employees support the Indictment’s allegations.

So to summarize this, there are two different sets of notes taken the day of the meeting which indicate that Sussmann told the FBI he wasn’t working for a client and Baker has repeatedly affirmed that’s what he was told.

As for what Sussmann told the CIA, a draft of a summary of that meeting did mention a client but that was taken out in the final version. So the defense may have a bit more leeway there but not much.

It certainly sounds to me like Durham has a strong case but we’ll have to wait until next summer to see how the trial plays out, unless of course Sussmann decides to make some kind of deal before that.