Getting To The Heart Of The Sussman Trial

Thoughts on the Michael Sussmann verdict, with thanks to @charlie_savage and @emptywheel and @joshgerstein and @johnson_carrie for challenging and interesting commentary and coverage throughout the trial: https://t.co/EMvDMX1Uyv

— Benjamin Wittes (@benjaminwittes) June 1, 2022

 Again, an excellent analysis which you probably want to read in full. What follows is a discussion of the main point.

Here’s what proving the case against Sussmann, if that was possible at all, certainly did not require: 

It did not require that Durham put on evidence about Fusion GPS or its interactions with the press. 

It did not require that he do a deep dive into how the FBI investigated the Alfa Bank matter, which took place, after all, after the alleged lie. 

It did not require Durham to show how Joffe collected the data in the first place or how his employees felt about being asked to assemble it. 

And it did not require Durham to put on evidence about how Sussmann, months after the meeting with Baker, brought the same matter to the CIA. 

Indeed, a huge percentage of the many hours of testimony given in this case related to Sussmann’s alleged lie—which, remember, is the only offense charged in the indictment—in the most glancing sense. You could watch hours upon hours of testimony and completely forget that this was supposed to be a case about a lie told in a brief conversation between two men with nobody else present at a single meeting six years ago.    

You can see this point in the text of the indictment itself. The document is 27 pages long. And it takes Durham until the eighteenth page before he bothers to discuss the charge that he is alleging. By the twenty-first page, he is on to other uncharged conduct. 

My point here is that Durham was not merely trying to prove that Sussmann made a single false statement to Baker. He was trying to prove a much larger conspiracy that he details but does not charge. The alleged lie was merely the aspect of this supposed conspiracy that he could find a way to charge. His purpose here, in large part, was evidently to tell this larger story.

Needless to say, that’s not what trials are for. That’s the heart of Wittes’ argument: Durham brought this case in order to establish the conspiracy which only exists in the fevered minds of Trump and his supporters. I’ve read a great deal today about what a sterling reputation Durham had and how this case has ruined it. All I can say is, don’t judge a career until it’s over, because Durham did this entirely to himself. Maybe that sterling reputation wasn’t entirely deserved.

As Wittes says, the prosecution didn’t need two weeks to present a case on a 10 minute conversation with no witnesses and no contemporaneous notes. But that wasn’t the case they took two weeks to present. Therein lies the fundamental problem. There is also, however, an important lesson in the jury verdict delivered only six hours after the fortnight of testimony ended.

Here is what I think is the most important part of this story:

There is, however, a problem with using the federal criminal process to supplant the standard model with the insurgent model: federal courts require evidence of the commission of an actual crime. And the insurgent model of L’Affair Russe, for all that it has caught on in recent years, remains singularly unfounded. 

Unlike when one writes about the “Russia Hoax” in The Federalist or when one spouts about it on Fox News or when Barr writes about it in his endless book, when federal prosecutors indict someone for a crime—that is, when they use the criminal process to advance such a narrative to the public—they do have to prove things to a jury. Mueller, for his part, brought a bunch of cases. He lost none of them, though Trump nixed a few using pardons and a group of other cases have never gone to trial because defendants were overseas. 

And Durham too has to face the discipline of the system. That means he can’t simply assert that hiring investigators to do normal opposition research in a political campaign and funnelling material generated by a technology executive to the press is some kind of conspiracy. 

It means that he can’t just assert that reporting such findings to law enforcement is an attempt to weaponize the FBI. He actually does need to allege an actual crime to tell such a story. It also means that when he decides to tell such a story—and to impute a great deal of wrongdoing to a whole range of people—hanging his hat on an alleged lie as the crime that gets him through the door to tell his story, he has to be prepared to prove that lie to be a real one, one that something actually turned on.

The first two paragraphs there are key to my argument. There’s a lot of loose talk on-line and on Twitter that the republic is doomed because demented conspiracists will control the election process in the states. No one seems to recall Trump tried this in 60+ cases, and lost every one. If state officials start throwing out ballots on crazy conspiracy theories even Alito won’t turn a blind eye to it. Conspiracy theories thrive on FoxNews and Twitter, but don’t fare well at all in a courtroom. This case, again, proves that the system works and ordinary people, not the political obsessives you meet on-line (Hello!) are not that interested in crazy.

As the jury forewoman put it to NPR in the trial’s wake, "I feel like we could have spent our time more wisely."

Not everybody out there is a crank or a sheeple.  And the crazies who think they will be large and in charge are going to find out that, like Mike Lindell, they aren’t. 🐑