The Sussman Trial

Here is the Sussmann indictment as filed by Durham. It is an absurd 27 pages long. I could have written it in 2-3 pages, including signature page.

As you can see, excepting all the run on horse manure Durham penned, the indictment is for a single count of false statement under 18 USC §1001. That is it. One lousy count. That is it.

I will save you the niceties and simply quote you the DOJ guidance on §1001, and here it is:

Section 1001’s statutory terms are violated if someone:

“falsifies, conceals or covers up by any trick, scheme or device a material fact,”
“makes any false, fictitious or fraudulent statements or representations,”
“makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry”
and, for cases arising after the 1996 amendments, the item at issue was material.
Whether the above acts are criminal depends on whether there is an affirmative response to each of the following questions:

Was the act or statement material?
Was the act within the jurisdiction of a department or agency of the United States? and
Was the act done knowingly and willfully?
[cited in JM 9-42.001]

907. Statements Warranting Prosecution. False Statement ›
Updated January 21, 2020

We all think this trial is a cutout for Trump and Trumpism. It is not. Sussman’s ass lies in the lurch. There is a live defendant. Actual jury trials are about what is charged. One count of §1001 is charged here. Keep your eye on that ball. Criminal trials are about crimes, and elements of crimes. This one will be too.

35 replies
  1. Frederick Janson says:

    Thoughts on whether or not John Durham, William Barr, Donald Trump, the Trump family, any member of GOP in Congress, Jeff Sessions, Jeff Rosen, and/or Rod Rosenstein have ever come close to violating 18 USC §1001?

  2. ThomasH says:

    I can only speak for myself, without your guidance, I would almost certainly be distracted by Dunham’s horse manure and my own expectations. Thank you again.

    • Lawnboy says:

      It has been my experience that “windy pomposity just draws flies and criticism”.
      The race tracks have the best quality in my mind.
      Perhaps they can bag that Sh@^@*#t and sell it, put a down payment towards restitution. ( Bag Label Slogan: “Its Organic…there’s no end to it!” Recall the garden centre presser with Rudy G. )


  3. Dutch Louis says:

    So the elephant gave birth to a mouse and the only question is whether the mouse is going to bite Sussman?

  4. Ginevra diBenci says:

    bmaz, I tried to make myself read Durham’s indictment again, but by page three he wanders away from the charged offense and it all starts to blur. (The Danchenko indictment with its huge chunks of repeated boilerplate has a similar effect.)

    It would reassure me to see the justice system weigh the *specifics* of this case as they relate to the law you cited above (thank you for that). I will be watching this trial, like all others, as a test of that foundational precept.

    • bmaz says:

      This is why I have been cautioning about real evidence. All the stuff in the media means nothing unless it is admitted into the trial and to the jury. And that is harder, and more lengthy than people think. It is not “the justice system”, it is the jury. They will weigh what is presented to them. It may or may not be what people expect.

      • Ginevra diBenci says:

        I shouldn’t have used “weighs” after justice system; that suggests I was thinking of a bench trial, which I wasn’t. I meant what the trial will provide to the jury given Durham’s and DeFillipis’s machinations and Cooper’s efforts to keep it on track. What the jury does with it (and most do the best they can) is up to them.

        • Savage Librarian says:

          Well before long, in words that are often attributed to Cary Grant (but in this case, ironically, a “d” is replaced by an “r”) it will be all up to the “Jury, Jury, Jury!”

          “Goober takes off on Cary Grant”

  5. Silly but True says:

    Interested to see whether it’s really just the one paragraph about Sept. 19 meeting between Sussmann & Baker vs. the other 28 pages of “joint venture stuff” that ends up mattering.

    Will Robby Mook, Marc Elias, Bill Priestap, Laura Seago, Deborah Fine, and the CIA official identified only as “Kevin B” — whatever truths he’s going to drop — matter one iota to clarifying for jury what was said or not by Sussmann to Baker in their 19th meeting?

    Will Michael Horowitz, Mary McCord reporter Eric Lichtblau matter at all to clarifying what was said or not by Sussmann to Baker in their 19th meeting?

    Maybe the jury will have robust enough understanding to distinguish non-material lies vs. material ones; it may be shocking revelation to jury that it’s not a crime to lie to the FBI if the lie isn’t material; will that be too much of shock to their systems or will this distinction be a bright enough line between them?

  6. Thomas says:

    I hope all of your analysis has been helpful to Mr Sussman and that the jury will understand the difference between the prosecution of an actual offense and malicious politically motivated harassment.

    Durham just wanted Fox News to be able to say that someone connected with the Russia investigation lied to the FBI.

    • timbo says:

      Let’s be clear here. Durham wouldn’t be rolling on this if it weren’t for Barr and Twitler conspiring to hurt their political opponents in this country. Durham can’t appoint himself to the position he has at the moment. Barr did that. And likely at the direction of other Twisslerings around Twitler.

  7. Cosmo Le Cat says:

    Is the trial all but over if Baker answers “yes” to the question: “Is it possible that Sussmann told you ‘not on behalf of a client’ (or that you read his email to that effect) and you filed that in your memory as him saying ‘not representing a client’?”

  8. Benfdc says:

    The evidentiary portion of the trial and the judge’s instructions to the jury will be about the charged offense, but shouldn’t we expect that the prosecution’s opening and closing statements will bring in all of the political garbage that makes up the bulk of the indictment?

    • emptywheel says:

      They can’t include things that aren’t going to come in as evidence. So there’s already things that Cooper has excluded from opening arguments.

  9. BROUX says:


    You write “We all think this trial is a cutout for Trump and Trumpism. It is not. Sussman’s ass lies in the lurch. There is a live defendant. Actual jury trials are about what is charged. One count of §1001 is charged here. ” Clearly all true. This is not a show and it is not a joke.

    Nonetheless, the critical question is whether you think that this trial is justified or is an abuse of prosecutorial power. Maybe you will say that this isn’t relevant (and slam my comment on the way…), but if I was on the jury, it sure would be on my mind.

    There are many levels in the justice system where people with real power have to make subjective decisions (investigate or do not investigate XXX, prosecute or not prosecute YYY…). As members of the general public, we do not have direct power to oversee these subjective decisions. Most of the time we grant these people the benefit of the doubt. Sometimes we have to suffer the consequences of their very questionable decisions. Accountability exists in the justice system, but it seems rare and slow-coming to my eyes (e.g., Alex Acosta, Pam Bondi, …).

    This case is about a private person who reported an anomalous and suspicious behavior (Alpha Bank), which most reasonable people agree was genuinely a serious issue at the time. This outsider to the justice system had no special power to force the FBI or anyone to open an investigation or do whatever. But to my eyes it seems perfectly reasonable to report the facts and let the authorities deal with it. Yet, it seems that now, for a reason that seems entirely political, someone in the justice system decided that the behavior of this person had to be punished.

    If I was on the jury, I would certainly listen to the facts to the best of my abilities as an honest citizen must do, but the entire case really seems far fetch.

  10. chetnolian says:

    Two things strike me as a non-US lawyer.

    First, the indictment seems to be not just fluff, but specifically structured, though of course it cannot say, that the information provided was itself false. That is clearly intended to “lead ” the jury.
    Will the prosecutors be allowed to pursue this course through the trial?

    And second, given the nature of the charge it is hard to imagine a case where the precise words used would be more important. I have been trying to keep up, but am I right in thinking the precise words do not form a part of the evidence to date?

    • Silly but True says:

      Unless you’re special like Danchenko who somehow managed to luck into the FBI recording him against his knowledge, the FBI still does not generally videotape interviews despite an 8 year old rule advocating defaulting to videotaping, primarily based on the long-standing presumption that that an FBI Special Agent’s testimony under oath is credible and means something to the court and the public. (Note, this is despite the fact that the court has long adopted general rules advising that law enforcement testimony should not be favored more or less than anyone else’s.)

      So, there is no transcript available generated by any infallibly omniscient observer that reflects the precise words stated in the meeting.

      That would surely be something helpful in any case involving alleged lying to FBI.

  11. WilliamOckham says:

    Does the government have to prove that Sussman was representing both Joffe and the Clinton Campaign, assuming they prove all the other elements of the offense?

    • Silly but True says:

      No. Both sides agree on what constitutes the elements of the offense. In Joint Jury Instruction 3, agreed by both Durham & Sussman, it is sufficient for Durham to prove Sussmann’s “statement or representation was false, fictitious or fraudulent.” The specific details of the false, fictitious, or fraudulent statement are not necessary insofar that it might have been just partially wrong versus completely wrong; or rather lying about either Clinton, or Joffe, or both Clinton and Joffe would all constitute a sufficient trigger.

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