Trump Defenders Are Wrong on 1/6 Hearings and John Durham – New York Magazine

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The information we are learning from House’s hearings about January 6 has reignited legitimate questions about Donald Trump’s legal liability for the events leading up to the siege of the Capitol, but conservative pundits are so far struggling to offer a compelling rebuttal to the proceedings. Before the hearings even began, The Wall Street Journal’s Kimberley Strassel argued that the public could not “trust the findings of a panel whose members began with a preconceived narrative” and “whose work Democrats are openly broadcasting as a political operation.” After the first night of hearings, law professor Jonathan Turley, who had testified for Republicans in the House’s first impeachment proceeding, claimed that the “one-sided” nature of the committee’s presentation of its findings meant they lacked “credibility” and “a sense of authenticity and authority.”

There is something to this but not as much as the argument seems to imply. Before the first hearing, the New York Times reported that Democrats hoped to use the hearings “to remind the public of the magnitude of Mr. Trump’s effort to overturn the election, and to persuade voters that the coming midterm elections are a chance to hold Republicans accountable for it.” The fact that one purpose of the hearings is to affect electoral politics, coupled with the use of a one-sided design that skews the presentation largely (if not entirely) to be anti-Trump, means that those of us trying to seriously assess the information being revealed need to be mindful of context, counterevidence, and rebuttals we might not be seeing. It does not follow from that observation, however, that the evidence from the hearings should be entirely dismissed.

The professed concern in elite conservative circles about the need for impartiality and intellectual honesty on the part of investigators is also hard to take seriously given that, for much of the past month, many of the same people have been furiously spinning in defense of the right’s favorite prosecutor, John Durham, after a humiliating defeat that followed years of hype and anticipation among conservative political and media figures.

Durham, of course, is the prosecutor who was appointed by then–Attorney General William Barr in early 2019 to determine whether senior officials in the Justice Department or FBI engaged in criminal misconduct related to the opening of the Trump-Russia investigation. The investigation, now in its fourth year, has so far established nothing of the sort. At the end of May, the jury in Durham’s first trial quickly acquitted the defendant, a former lawyer for the 2016 Hillary Clinton campaign named Michael Sussmann. The high-profile setback prompted a desperate weeks-long effort among supporters to defend the prosecutor in the wake of his loss. This was, after all, not supposed to happen to the man who had conducted “the most methodical prosecution … in recent history,” as his work was described by former Trump administration official Kash Patel, and who had inspired comically dramatic threats of legal retribution — “Durham is coming,” Donald Trump Jr. tweeted in February — for the people who had supposedly wronged Trump.

The fact that this all rolled right into the start of the committee’s hearings has produced a conspicuous, if predictable, juxtaposition — with many of the same people who continue to support Durham’s increasingly strained investigation, such as Strassel and Turley, now lamenting the committee’s supposed failure to conduct a credible and authoritative investigation into Trump’s conduct after the 2020 election. These lectures have been particularly jarring given just how elaborate and at times nonsensical the excuses on Durham’s behalf have been following his loss, and it has all served to provide further evidence that many of the people who lead these pro-Trump and anti-anti-Trump contingents do not seriously care about investigative or law-enforcement abuses so long as the targets are people they dislike.

The case against Sussmann was flimsy from the start. The single charge was that he had lied during a September 2016 meeting with Jim Baker, the FBI’s general counsel at the tail end of the Obama administration, in an effort to get the FBI to open an investigation into potentially suspicious communications between a Trump Organization computer server and the Russian Alfa Bank. In particular, Durham alleged that during the meeting Sussmann “stated falsely that he was not acting on behalf of any client” and “was conveying the allegations as a good citizen” when, in fact, he was doing so on behalf of the Clinton campaign.

Baker attended the meeting alone, took no notes, and offered multiple accounts of it in subsequent testimony and interviews with investigators that ultimately proved difficult to reconcile with one another on the critical question of what (if anything) Sussmann had said in the meeting about who (if anyone) he was representing. At the trial, Baker testified that he was “100 percent confident” about what Sussmann had said on this point after meeting with Durham’s team and reviewing notes that two of Baker’s colleagues had taken of discussions in which Baker recounted what had taken place at the meeting with Sussman. Durham’s case included testimony from Robby Mook, Clinton’s 2016 campaign manager, and Marc Elias, a former colleague of Sussmann’s at the law firm Perkins Coie who was the lead outside lawyer representing the campaign. Both Mook and Elias, however, testified that they had not authorized Sussmann to meet with Baker or anyone else at the FBI to present the Trump–Alfa Bank allegations.

The rest of the evidence included mostly tedious testimony from FBI agents who participated in the review of the information Sussmann had provided before the bureau ultimately rejected the suggestion that there was a covert communications link between Trump’s company and the Russian bank. One purpose of all that testimony was to establish that Sussmann’s alleged lie was “material” — a necessary element of the charge against him but a fairly easy one to satisfy as a legal matter since prosecutors simply needed to demonstrate that the lie affected “either the commencement or the later conduct of the FBI’s investigation,” not that it necessarily led to the investigation by itself.

The jury was clearly not convinced by this case, so to many of Durham’s boosters, this naturally meant the jury was in the tank for Clinton. Turley laid the groundwork for this claim early on, and others on the right echoed it, even though Turley himself had acknowledged this was “not an easy case to prove.” In the brief period when the jury was out, the Washington Examiner’s Byron York wrote that there was “no doubt” Sussmann was guilty, but he preemptively blamed the jury for an acquittal, as did a writer for the Federalist who claimed there had been “overwhelming proof of Sussmann’s guilt.” After the verdict, Patel called the result “a straight-up case of jury nullification,” as did other Trumpworld lawyers. (In Patel’s defense, there are not many arguments available to you to excuse a loss after you have, ridiculously, called the government’s team “the most methodical” group of prosecutors “in recent history.”)

Perhaps the most bizarre explanation put forward to explain Durham’s loss is the argument, as Turley put it, that the FBI was effectively an “unindicted co-conspirator” with Sussmann. As far as I can tell, the theory is that the FBI was willing to take derogatory information about Trump under false pretenses because the agency had it out for Trump — or, as another conservative legal pundit put it, Sussmann’s alleged lie was simply a convenient “cover story” the FBI could pretend to believe. Aaron Maté, a commentator on the left who has sharply criticized the Trump-Russia investigation, confidently announced after the verdict that “the FBI was in on the lie the entire time” and that “there’s no way that the FBI did not know that Michael Sussmann was working for the Clinton campaign.”

The theory makes very little sense given the FBI’s treatment of Clinton herself during the election, which suggested high-level nonpartisan ineptitude as opposed to a concerted effort to help either candidate, much less Clinton herself. Another problem is Baker testified during the trial that he would not have even taken the meeting with Sussmann if he had been told Sussmann was representing the Clinton campaign, so in order to believe that Baker and his colleagues were willing recipients of supposed anti-Trump misinformation from the Clinton camp, you would need to believe that Durham’s team had allowed Baker to perjure himself (which prosecutors are not supposed to do) or, perhaps, that Durham is even more incompetent than his most fervent detractors claim since the whole point of his investigation was to identify nefarious anti-Trump forces at the highest levels of the FBI and DOJ.

The last major line of defense for Durham — an excuse that was offered even before the trial began — is that the Sussmann acquittal does not matter because the important thing is Durham publicized evidence in support of the right’s conspiracy theories. Strassel, for instance, argued in a post-verdict podcast that the trial was “monumentally important” and that Durham had done “the public a huge service” because “his bigger goal here is to get the true story of what happened out there using these cases.” Barr likewise said Durham had “accomplished something far more important” than a conviction because “he brought out the truth.” Even if they believe this, these comments endorse a use of the criminal-justice system that should, in theory, particularly disgust actual conservatives, who used to be broadly skeptical about the use of government power — particularly, as in this instance, when that power is literally being used to deprive someone of their liberty.

Based on what we can glean from the jurors themselves, the apparent reason Durham lost is that, as many observers noted at the outset, he had a case with a bunch of significant problems.

One of them is that Baker, while evidently sincere in his current recollection, was not a particularly reliable witness given his earlier accounts of the meeting. (It is not hard to see why this would have been the case since the question at issue in the trial — whom Sussmann may have been representing at the brief meeting in question — was relevant but not central to Baker’s work, and more than five years had passed since the event.) The fact that Durham’s own witnesses could not provide evidence that Sussmann had sought the meeting on behalf of the Clinton campaign also created a gaping evidentiary hole in his theory of the case, which he never managed to fill. In fact, both Mook and Elias testified that they were wary of dealing with the FBI by September 2016 in light of the bureau’s public bungling of the Clinton email probe. As a result, Durham struggled to establish beyond a reasonable doubt that Sussmann had even made the alleged misrepresentation with which he had been charged and, if he had, that the statement was actually false.

One problem that was not apparent until very late in the pretrial proceedings was Durham’s belated discovery of a text message from Sussmann to Baker the night before the meeting. In that message, Sussmann wrote that he was “coming on my own — not on behalf of a client or company — want to help the Bureau.” Ordinarily, this would be prosecutorial gold, and if you were the prosecutor on this case, you would try to file an amended (or “superseding”) indictment to incorporate this new evidence and perhaps a new charge tied to the text message. It was too late to do that in this instance, however, because the five-year statute of limitations on a new charge tied to the text had lapsed.

Durham’s team nevertheless tried to use the text as evidence that Sussmann had made the same claim the following day in the meeting, but the existence of the message raised the distinct possibility that Baker had misremembered exactly when he heard what he recalled from Sussmann and, in turn, that Durham had charged Sussmann with lying on the wrong day. Few on the right have grappled with this problem directly — much less with what it says about the competence and rigor of Durham’s investigation that his team failed to secure highly probative and readily accessible communications between the defendant and the key witness until long after it had charged the case.

To be sure, the verdict was not an exoneration of Sussmann. His principal defense theory — that he had sought the meeting as a concerned citizen despite the Clinton campaign’s potentially conflicting interest in engaging with the FBI — is difficult to embrace, particularly given the sorts of ethical obligations lawyers owe their clients. Instead, it appears Sussmann’s acquittal was the result of a classic multipronged failure of proof in a case in which the defendant had very capable lawyers and the jury had substantial reason to doubt the competence of the prosecutors. It happens.

Durham has another trial scheduled for this fall in a case against a man who has been charged with lying to the FBI about his work preparing the infamous Steele dossier. (Here, again, officials at the FBI are the purported victims of this alleged misconduct, not the perpetrators.) Durham is also supposed to prepare a final report for public distribution once he wraps up his investigation, but one serious question that hangs over that project is whether he is competent or reliable enough in his fact gathering, his assessment of evidence, and his professional judgment to produce a document that the public should take seriously. That has been open to doubt for quite some time, but the Sussmann acquittal has put the problem into much sharper relief.

Meanwhile, the January 6 committee continues to present the results of its investigation — a competently executed and legitimately important one — but most Trump-sympathetic observers seem intent on either ignoring them entirely or discounting them as the products of another elaborate, politically motivated anti-Trump plot. That would be easier to take seriously if they weren’t cheering on a seemingly aimless criminal investigation on explicitly political grounds, one that has been limping along for years, has been costing taxpayers millions, and has, so far, failed to notch a single meaningful success.

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