Thoughts on Durham and the Sussmann Prosecution

After deliberating for only a few hours following a two-week trial, a federal jury this week acquitted D.C. attorney Michael Sussmann on a single charge of lying to the FBI. The quick not-guilty verdict was no surprise; the flimsiness of the government’s case was apparent from the start. This was a case that never should have been charged. The Sussmann prosecution is a cautionary tale of the damage a prosecutor can do when he loses sight of the line between criminal justice and politics.

Michael Sussman speaking after the verdict
Sussmann speaking after the verdict

The Sussmann Indictment

Sussmann is a prominent D.C. attorney who represented the Hillary Clinton campaign and the Democratic National Committee during the months leading up to the 2016 presidential election. In September 2016 he brought computer data to the FBI that suggested possible links between Donald Trump’s presidential campaign and Alfa Bank, a Russian bank with ties to the Kremlin.

The Alfa Bank allegations became a minor part of Crossfire Hurricane, the FBI’s broader investigation into potential ties between the Trump campaign and Russia. That investigation ultimately concluded that the data provided by Sussmann did not establish the suspected connection between the bank and the Trump campaign.

Former president Trump, of course, complained repeatedly (and still complains) that the FBI’s Russia investigation was a hoax, that the FBI and Clinton campaign conspired against him, and that the Obama administration “spied” on Trump and his campaign. Trump’s attorney general William Barr was also critical of the FBI’s Russia probe. In May of 2019, he assigned John Durham, the U.S. Attorney for Connecticut, to lead an investigation into any potential criminal wrongdoing in the Crossfire Hurricane investigation. In October 2020, Barr appointed Durham as a special counsel to continue that same investigation, thus granting Durham more independence and ensuring that his work could continue even after the Trump administration left office.

Last fall, just before the five-year statute of limitations expired, Durham charged Sussmann with making a single false statement during his meeting with the FBI in 2016 about the Alfa Bank data. The indictment alleged that during the meeting Sussmann said he was not acting on behalf of any client in bringing the data to the FBI. In fact, according to the indictment, he was acting on behalf of the Clinton campaign and a tech executive who collected the data.

The False Statements Charge

Sussmann was charged with one count of False Statements, 18 U.S.C. § 1001, a very common white-collar charge that broadly prohibits lying to the federal government. Unlike the related crime of perjury, it does not require that the statement was under oath. The statute is commonly used to charge lies on various government forms or applications. If you’ve filled out any kind of federal government paperwork, you’ve probably seen a notation at the bottom about how providing false information may be a criminal offense chargeable under 18 U.S.C. § 1001.

False statements is also frequently used to charge witnesses with lying to the FBI. A recent high-profile example was the prosecution of president Trump’s former national security advisor Michael Flynn, who was prosecuted for lying to the FBI about his contacts with the Russian ambassador in the weeks leading up to Trump’s inauguration. Trump confidant Roger Stone was also convicted of 1001 for lying to Congress about his work for the Trump campaign related to Wikileaks and the release of Democratic emails stolen by Russian hackers.

In any false statements prosecution the government must prove that the statement was actually false, that the defendant acted knowingly and willfully, and that the statement was material. Durham’s prosecution of Sussman stumbled over each of these requirements.

Special Counsel John Durham
Special Counsel John Durham

The Challenge of Proving Actual Falsity

The government’s star witness at trial was James Baker, the former FBI general counsel who met with Sussmann about the Alfa Bank data. The prosecution’s entire case hinged on Baker’s memory of a single alleged statement from their 30-minute conversation nearly six years ago. The meeting was not recorded, Baker took no notes, and there were no other witnesses.

Baker claimed on the stand that he was “100% confident” Sussmann told him during the meeting that he was not there on behalf of a client. But Baker had given conflicting accounts in the past about what exactly Sussmann said during their meeting, and the defense was able to hammer away at those inconsistencies. Sussmann’s defense also pointed out that Baker said he could “not recall” more than 100 times while on the witness stand. Yet when it came to this one particular detail of their conversation, his memory was supposedly rock-solid.

Recalling from memory precisely what was said in a brief conversation six years ago is virtually impossible. Given the nature of memory and human language, differences in recollection about precise wording and details are inevitable. And when a criminal charge is based on deliberate lying, minor variations in exactly what was said can make all the difference.

For example, one issue that arose during the trial was the distinction between representing a client and doing a particular act on behalf of that client. There was no doubt that Sussmann represented the Clinton campaign, and there was no doubt that Baker and the FBI knew that. But, as the defense pointed out at trial, just because you represent a client doesn’t mean that every action you take is on that client’s behalf.

There was evidence at the trial that the Clinton campaign did not ask Sussmann to bring the Alfa Bank information to the FBI. The campaign would have preferred that the data simply be given to the media, because it did not trust the FBI and thought the existence of an active investigation might actually make it more difficult to get the story out. So it could easily be true both that Sussmann represented the Clinton campaign and that he was not acting on the campaign’s behalf during this particular meeting. At the very least, those kinds of subtle distinctions almost inevitably raise a reasonable doubt about what precisely happened during a brief meeting six years ago.

It’s interesting to note that if the crime were common-law perjury (which requires testimony under oath) rather than false statements, an ancient doctrine called the “two witness rule” would bar such a prosecution. The two witness rule holds that a perjury prosecution cannot be based simply on a swearing contest, one person’s word against another’s. Prosecutors must have at least two witnesses to prove an alleged perjurious statement, or one witness plus some other independent evidence that supports the allegation of perjury. More modern perjury statutes have done away with the two-witness rule, and there is no such rule when it comes to 18 U.S.C. § 1001. But the wisdom of that rule still applies: resting a criminal prosecution on such “he said – he said” evidence is necessarily shaky, and only gets shakier with the passage of time.

These inherent uncertainties based on the nature of language and memory are why bringing a stand-alone prosecution based on a single unrecorded false statement witnessed by only one person is almost unheard of. It’s almost the definition of a reasonable doubt. That would be enough to stop most prosecutors — but it didn’t stop Durham.

The Requirement of Materiality

In addition to proving what Sussmann actually said (which, as we’ve seen, was difficult enough), the government had to prove any lie was material — that it potentially mattered to the FBI. Here, too, the evidence in Sussman’s case fell far short.

The materiality requirement is usually not a significant hurdle for prosecutors. It means only that the statement had the potential to affect the actions of the government body to which the statement was directed. There’s no requirement that the government was actually influenced; in fact, a false statement can be material even if the government knows you are lying the instant that you utter it and never acts on it at all. All that matters is that the statement, by its nature, was the type that potentially could have made a difference.

Baker testified that if Sussmann had not allegedly made his false statement about not coming on behalf of any client, he would have treated the information with more suspicion or perhaps would not have agreed to meet at all. If believed, that testimony would be enough to establish materiality as a matter of law. But there were many reasons for the jury to doubt this evidence as well.

There was ample evidence – some of it contained in the indictment itself — that the FBI knew full well who Sussmann was and what clients he represented. Given what Baker knew about Sussmann’s clients and connections, there was little reason to believe he would have acted any differently even if Sussmann did claim to be providing the computer data solely as a good citizen. After all, this meeting was taking place less than two months before a hotly-contested presidential election. The FBI wasn’t receiving the information in a vacuum and could not divorce the information from what it knew about its source. And the evidence at trial established that the Bureau would have investigated the allegations regardless of their origins. That at the very least raised a reasonable doubt about the alleged statement’s materiality.

The jury’s quick verdict suggests that it saw the allegations against Sussmann for what they were: a big “so what.” Jurors interviewed after the verdict said the case should not have been prosecuted and that they thought the government has better things to do. In class I sometimes refer to this as the, “no harm, no foul” rule – it’s not really a legal doctrine, but it does get the idea across. As a prosecutor, if at the end of your trial the jury is looking at you and thinking, “Why did you waste our time with this?” — it doesn’t bode well for your case.

Donald Trump

A Political Prosecution

From the start, the Sussmann prosecution felt more political than criminal. The lengthy indictment sought to paint a broad picture of a supposed conspiracy involving Clinton campaign operatives and the FBI. But most of the alleged activities involved legal opposition research and had nothing to do with the actual charge against Sussmann. Trying to dig up dirt on an opposing campaign and get the media to run with it may be unsavory. But it’s not illegal, and is a standard practice — as the old saying goes, politics ain’t beanbag. Sussmann’s indictment seemed more designed to feed Trump’s fevered conspiracy theories than to lay out an actual criminal case.

Prosecutors at trial also sought to portray Sussmann’s supposed deception as part of a broader plot by the Clinton campaign to enlist the FBI in bringing down Trump. Prosecutors referred to Sussmann as a “privileged attorney” who tried to use his access to further his own political goals. In closing arguments, prosecutors argued that Sussmann and the Clinton campaign tried to engineer an “October surprise” involving the media and the FBI in order to damage Trump. To put it mildly, the jury didn’t buy it.

Some on the right will argue that, regardless of the outcome, Durham did a great service by bringing the case and “exposing” supposedly unsavory conduct by the FBI and the Clinton campaign. But criminal prosecution is about bringing specific, provable charges, not providing public reports on noncriminal conduct. The Department of Justice Inspector General already produced a lengthy report about the FBI’s handling of the allegations concerning the Trump campaign and Russia. That report concluded there were some legitimate problems with how certain aspects of the investigation were handled, but that the overall investigation was properly predicated and not politically motivated. It was not Durham’s job to create an alternate-universe version of those facts through the vehicle of a trumped-up criminal prosecution.

Of course, an acquittal does not necessarily mean that a prosecution was not righteous. But in this case, that’s exactly what it means. A federal prosecutor is not supposed to indict unless he or she believes there is likely sufficient evidence to convince a jury of guilt beyond a reasonable doubt. It’s hard to see how any prosecutor could have looked at the facts of the Sussmann case and reached that conclusion in good faith.

Sussmann’s acquittal means the system ultimately worked, but that is cold comfort. Merely being indicted and put on trial is a tremendous ordeal – one that Sussmann never should have had to endure. Good prosecutors never forget the tremendous responsibility that comes with the powers they wield. In Durham’s zeal to provide fodder for Trump’s “deep state” conspiracy theories, he appears to have lost sight of this fundamental principle.

Durham’s probe has now lasted more than three years, and he has remarkably little to show for it. He obtained one guilty plea to a minor charge involving a former FBI attorney who admitted altering an email. He has another pending case against a Russian national, Igor Danchenko, for allegedly making false statements to the FBI about his involvement in the controversial Steele dossier. It’s unclear whether Durham’s investigation will lead to any more prosecutions. The Sussmann verdict will surely increase the pressure on the Justice Department to bring it all to a close.

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Steve Bannon, Contempt, and Advice of Counsel

Former Trump aide and full-time provocateur Steve Bannon is facing trial on two criminal charges of contempt of Congress for defying a subpoena from the House January 6 Committee. The judge in his case just ruled that Bannon cannot defend against the charges by presenting evidence that he relied on the advice of his attorney when he failed to honor the subpoena. That’s clearly the right decision based on existing law. But although it’s impossible to feel sorry for Bannon, I’m not sure the rule against allowing an advice of counsel defense in this situation is really in the interest of justice.

Donald Trump and Steve Bannon

The Facts of Bannon’s Case

Bannon reportedly was deeply involved in the events leading up to the assault on the Capitol. The Committee subpoenaed Bannon on September 23, 2021, ordering him to produce documents on October 7 and appear for a deposition on October 14. He did not comply with either demand. Instead, his lawyer Robert Costello wrote to the Committee that Bannon would not honor the subpoena because former president Trump had claimed executive privilege over the requested information. Costello claimed Bannon therefore was “legally unable to comply” unless the Committee reached an agreement with Trump or obtained a court order on the scope of the privilege.

The Committee Chairman, Rep. Bennie Thompson, wrote back to Costello and rejected those claims. Thompson pointed out that most of the requested information related to Bannon’s activities as a private citizen and that Trump had made no formal assertions of privilege. Thompson warned that if Bannon failed to comply with the subpoena the Committee would consider him to be in contempt.

In additional back-and-forth correspondence, Costello again claimed that Bannon could not comply and Thompson again rejected those claims. Bannon did not produce any documents and did not appear for the deposition. On October 21, the House voted to hold Bannon in contempt and referred the matter to the Department of Justice. On November 12, a grand jury indicted him on two counts of Contempt of Congress.

Contempt of Congress

The contempt of Congress statute, 2 U.S.C. § 192, provides in part:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House . . . willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. (emphasis mine)

If a witness is found in contempt by the full House or Senate, 2 U.S.C. § 194 provides that Congress shall certify the matter to the United States attorney, “whose duty it shall be to bring the matter before the grand jury for its action.”

As I’ve written before, this statute has, shall we say, some issues. For one, it is a completely inadequate tool for enforcing Congressional subpoenas. Prosecution doesn’t compel the witness to testify, it merely punishes the witness for the contempt after the fact. If the goal is to get the relevant information from the witness – which usually should be the goal, at least — this criminal sanction does not accomplish that.

There’s also the interesting wrinkle that, although the statute says the U.S. Attorney has the “duty” to present the case to a grand jury, Justice Departments of both political parties have taken the position that “duty” doesn’t mean “obligation.” When a witness from the executive branch is held in contempt by Congress (usually one controlled by the other political party), the Justice Department routinely declines to prosecute, based on concerns about the separation of powers and executive privilege. As a result, most such referrals from Congress go nowhere.

Bannon was in a different posture because he was not part of the current administration when he was found in contempt, and DOJ was controlled by the other political party. He was the first person in years to be indicted for this offense.

The Advice of Counsel Defense

The primary defense Bannon wanted to raise at trial was, “My lawyer told me it was OK.” Bannon sought to argue the government could not prove he acted “willfully,” as required by the contempt statute, because he was acting in good-faith reliance on the advice of his attorney.

This “advice of counsel” defense can defeat the required proof of criminal intent in a narrow category of cases. Generally the criminal law holds that people are responsible for their own knowing actions and, as the old saying goes, ignorance of the law is no excuse. For most crimes the government need only prove that the defendant intended to do the acts that constitute the offense, not that the defendant knew he was violating the law. To take an extreme example, if I commit a robbery or a burglary I will not be allowed to defend by claiming I didn’t know robbery or burglary were against the law or that my lawyer told me it was OK.

But for some criminal violations, the government is required to prove a higher level of intent. This intent requirement can be expressed in different ways: specific intent, or evil intent, or acting in violation of a known legal duty. In such cases, ignorance of the law can, in fact, be an excuse. If your attorney told you that what you were doing was lawful, that advice could defeat the government’s proof of your intent.

This higher level of intent is sometimes expressed in criminal statutes by the requirement that the defendant acted “willfully.” That was Bannon’s argument when it comes to contempt of Congress: he claimed that because the statute requires that his default was “willful,” the government had to prove he deliberately disregarded a known legal duty. If that were the standard, then Bannon could raise an advice of counsel defense.

The Definition of Willful

The definition of “willful” is a confusing area of criminal law. The Supreme Court has noted that willful has a different meaning in different criminal statutes and its meaning often depends on the context. Sometimes it does mean the government must prove a defendant knew he was violating the law. But for most statutes, it means simply that the defendant’s conduct was knowing and intentional, rather than accidental.

In their court papers, Bannon’s attorneys cited cases such as the Supreme Court’s leading decision in Ratzlaf v. United States to argue that “willful” means the government must prove Bannon knew his defiance of the subpoena was unlawful. Ratzlaf involved violations of the currency structuring laws, which prohibit “willfully” breaking up cash transactions into amounts under $10,000 so the banks won’t file any currency transaction reports.

The Court noted that breaking down financial transactions into smaller amounts is not obviously evil. The average person would not necessarily be on notice that it might be criminal. In the context of the structuring statute, therefore, the Court held it was not enough that the government prove the defendant knew his conduct would result in the reports not being filed. The requirement of “willfulness” meant the government also had to prove the defendant knew that structuring was unlawful.

The same standard applies in tax crimes, where the Court also has interpreted willfully to mean prosecutors must prove the defendant knowingly violated the tax law. Another example is campaign finance violations, such as the one Trump’s former attorney Michael Cohen pleaded guilty to in connection with the Stormy Daniels payoff. Criminal campaign finance violations require proof the defendant acted willfully, which courts have interpreted to mean the defendant must have known his actions violated campaign finance law.

What these crimes have in common is that they are complex and quasi-regulatory. They contain legal prohibitions that are purely creatures of statute, not so-called “Ten Commandment crimes.” The conduct involved is not inherently evil and an ordinary citizen would not necessarily be on notice of the criminal implications. As the Court has noted, they involve “highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct.” Before holding someone criminally responsible for such crimes, therefore, due process requires the government to prove the defendant knew about the relevant legal requirements. 

But this heightened requirement of willfulness remains the exception, not the rule. When interpreting statutes, the general rule is still that “willful” means simply consciousness of the act itself, not consciousness that the act is unlawful. Ignorance of the law usually is still no excuse — which means it’s irrelevant if your lawyer gave you bad advice.

The Licavoli Case

Bannon argued that the requirement of willfulness in the contempt statute should be interpreted to require the known violation of a legal duty, just like tax or campaign crimes. Unfortunately for Bannon, there is an old D.C. Circuit case that squarely rejects his argument. In Licavoli v. United States (1961) the defendant was charged under the same contempt statute for failing to respond to a subpoena from the U.S. Senate. He argued the government could not prove he had acted willfully because he had relied on the advice of his attorney.

The Court of Appeals held that “willful” in the contempt statute does not require proof of an evil intent or knowing violation of the law. Any witness who deliberately and intentionally fails to appear, the court held, “willfully makes default” under the statute. The requirement of willfulness serves only to distinguish deliberate decisions not to appear from failures to appear caused by other reasons, such as illness or travel delays. “All that is needed . . . is a deliberate intention to do the act. Advice of counsel does not immunize that simple intention. It might immunize if evil motive or purpose were an element of the offense. But such motive or purpose is not an element of either of these offenses.”

In other words, the crime of contempt is relatively simple: if you are properly served with a subpoena, you must honor it. You don’t get to ignore it and then claim later that your lawyer said it was OK. The crime is more like a robbery or burglary than like a tax crime or structuring. If you make the deliberate decision to defy the subpoena, you are responsible for the consequences of your actions – just as with most criminal offenses.

Not surprisingly, in light of Licavoli, U.S. District Judge Carl Nichols ruled that Bannon may not present evidence of his attorney’s advice at his trial. Bannon’s attorneys argued that this case was different because of the potential issues of executive privilege involved. But the government successfully countered that the only relevant issue was Bannon’s intent, and the nature of any potential privilege did not affect that question.

Steve Bannon
Steve Bannon

Advice of Counsel, Contempt, and Executive Privilege

Judge Nichols noted that, if he were writing on a clean slate and was not bound by the Licavoli precedent, he might agree with Bannon that the advice of counsel defense should be allowed. I might agree as well.

I understand the reason behind the general rule that advice of counsel is not a defense to contempt – particularly when it comes to not showing up at all in response to a subpoena, as Bannon did. If it were a defense, it would be far too easy for witnesses to ignore subpoenas simply by claiming their lawyer told them they have some kind of privilege. This would severely undermine the subpoena power of Congress – and of the courts, for that matter. Generally, even if you claim a privilege, you need to show up in response to the subpoena and assert that privilege in person.

That being said — the result in this case doesn’t feel right to me. I can’t bring myself to type the words that I sympathize with – well, you-know-who – but I can sympathize with someone in his position. It’s important to consider the general rule here, divorced from the particular context of January 6 and Bannon.

Suppose you received a subpoena from a Congressional committee — what would you likely do? You’d talk to a lawyer. Suppose your lawyer tells you that you don’t need to respond and gives you some facially plausible legal reasons why. Suppose further that lawyers for the former president of the United States say the same thing and ask you not to comply. You’re not a lawyer. If you do what we normally expect people to do, follow your lawyer’s advice, and are prosecuted, is your only remedy to sue your attorney for malpractice from your jail cell?

This entire proceeding involves legal battles, and complicated ones at that. Issues of executive privilege are not well-settled. And there are some opinions from the DOJ Office of Legal Counsel arguing that executive branch officials need not show up at all in response to a Congressional subpoena. Sure, these opinions are controversial, but they do exist. Yes, I know, Bannon was no longer in the executive branch by January 6. But whether and to what extent executive privilege survives once an individual leaves the government is also an unsettled question.

Still, overall, Bannon’s executive privilege claims seem very weak, particularly the claim that he could refuse to show up at all. Many would argue that the advice Bannon received was frivolous, or that his lawyer was incompetent, given that weakness. But if it turns out a lawyer was incompetent, should the client go to jail as a result?

It seems likely that Bannon was primarily interested in trying to stonewall the Committee and would have latched onto any excuse to avoid cooperating. But the reliance on advice of counsel has to be in good faith. If the government could demonstrate that the supposed reliance on legal advice was just an excuse to refuse to cooperate, the jury should reject the defense. But that’s different from saying Bannon should not even get to present the argument to the jury for its consideration.

Legal proceedings in general, and fights over things like executive privilege, have gotten a lot more complex in the sixty years since Licavoli. And as Bannon’s lawyers argued, most of the Supreme Court decisions approving the stricter requirement of “willfulness” were decided well after Licavoli. A battle over a subpoena involving the notoriously murky area of executive privilege seems more like a tax or structuring case to me than a burglary or robbery. I’m not sure the average citizen should be expected to know what the law requires. And I’m not sure we should expect witnesses in such cases to ignore the advice of their attorneys, on penalty of criminal contempt.

Judge Nichols didn’t have any choice but to follow the binding precedent of Licavoli. But if Bannon is convicted, he might have a good shot at convincing the D.C. Circuit to take another look at this issue. I’d feel happier about this prospect if the case involved someone less odious than Bannon – but even the odious are entitled to due process.

What all of this highlights once again is the inadequacy of this contempt procedure as a way to enforce Congressional subpoenas. Congress needs to revive some form of its inherent contempt power so that it can seek to compel compliance by witnesses on its own, rather than relying on the Department of Justice and lengthy court proceedings. And the remedy would be that Congress actually gets the information, rather than a misdemeanor prosecution that might not conclude until well after the Congressional investigation is over.

But for now, the Bannon case will proceed to trial, there will be no advice of counsel defense, and the January 6 committee will almost certainly conclude its work without obtaining Bannon’s information.

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