Observations On The Acquittal Of Clinton Lawyer Michael Sussmann

A federal jury today delivered what is widely being called a major setback to special counsel John Durham’s effort to get to the bottom, or at least part of the bottom, of the partisan Democratic plot to bring down the Trump administration. It acquitted lawyer Michael Sussmann on the charge that he lied to the FBI in 2016 while acting on behalf of the Hillary Clinton campaign, thus causing it to pursue a false investigation.

I must say: I thought this might happen. The Washington Post has long posited a defense that I regarded as cynical and depressing, but it felt like something a jury, especially a C.C. jury, might swallow. Sussman’s lies to the FBI didn’t matter, and neither did Hillary Clinton’s efforts to use what she knew was false information to sic the FBI on Trump. The FBI already knew that the case against Trump was weak and based on garbage, but it didn’t matter. Like so many others, it was determined to keep digging until they got him. And like the Sheldon-maddening argument on “Big Bang Theory” that nothing Indiana Jones does in “Raiders of the Lost Ark” matters (the Ark ends up buried anyway), if Sussman’s lie didn’t have any impact, it’s all “no harm, no foul.” The “Deep State” FBI was already so committed to bringing down Trump that it didn’t need fake clues to justify its investigation investigation. The FBI, like most of the D.C. establishment, was so certain that Donald Trump was…well, cue “The Birds” lady…


that it would would have launched the investigation anyway. Clinton’s garbage via Sussman was just one of many excuses they could use.

The fact is that anti-Trump hysteria may have doomed this trial from the start. I don’t know how the feds could pick an unbiased jury that would  give Donald Trump any reason to feel exonerated or be willing to begin to inflict accountability on the corrupt Clintons in the District of Columbia.

it’s sad but true: bias makes you stupid, and bias leads to a lot of terrible jury verdicts. O.J. was guilty as Hell. Derek Chauvin didn’t set out to kill George Floyd, and it was never proven that he caused Floyd’s death.

Other observations:

1. I wasn’t in the courtroom, and neither were you. It is impossible for me to say that the jury made the wrong call from this distance.

2. I hate the moral luck component of the “no harm, no foul” approach in criminal law, but there’s no way around it. If Sussman (and Clinton) didn’t trigger a destructive law enforcement attack on then-candidate Trump’s campaign, legitimacy and character, they still intended to. They are exactly as despicable, but not as culpable.

3. Sussmann’s attorney, Sean Berkowitz, told the jury that the prosecution was trying to turn a brief 30-minute meeting more than five years ago into a “giant political conspiracy theory.” Of course, there is no theory: there was a conspiracy, and to a great extent, it worked. The mainstream media has been throwing up dust for those five years, because the news media was part of the conspiracy. A large segment of the public, and I’d guess about 90% of the population of Washington D.C., has been effectively brainwashed by Big Lie after Big Lie. If they don’t think Trump did what the Mueller investigation set out to prove, they think he deserved to be obstructed anyway because…well, listen to “The Birds” Lady.

4. Charles Lipson writes at The Spectator,

There is sickening evidence that the presiding federal judge, Christopher Cooper, seated a jury he knew would strongly favor Sussmann, not because they liked Sussmann but because he represented Hillary Clinton and opposed Donald Trump…[b]y improperly seating three jurors who donated to the very candidate Sussmann was trying to help.

Those jurors all said they could be fair to the satisfaction of the judge.  Special Counsel John Durham’s team argued they should be excluded for “cause,” but the judge disagreed, and I would have to. Donating to Clinton’s campaign doesn’t, by itself, show that a juror couldn’t conclude that her opponent was illegally torpedoed. We know a lot more now about just how corrupt Clinton was (is). The prosecution had the cards stacked against them: you can’t strike a juror because of race, yet every black potential juror who hadn’t been living in a cave had been bombarded with propaganda that Donald Trump is a racist. As far as most of the jury poll was concerned, the prosecution might as well have been siding with the KKK.

5. The Times is already spinning despicably. Its headline: “Michael Sussmann Is Acquitted in Case Brought by Trump-Era Prosecutor.” John Durham isn’t a “Trump-Era prosecutor,” he’s a decades long prosecutor of impeccable credentials and a record of non-partisan integrity.

5. I can’t disagree with Lipson’s conclusion:

Despite Sussmann’s not-guilty verdict, his trial revealed the rank odor of Washington politics. It suffuses our courts, our law enforcement bureaucracy, and the mainstream media. It reeks of insider dealing and extreme partisan bias. That stench should alarm anyone concerned about America’s ability to govern itself democratically. That governance requires trust in our institutions, including confidence our courts can resolve legal issues with fairness and integrity…

Nonetheless, this is still just one more episode in the 2016 Post Election Ethics Train Wreck, the longest-running ethics disaster in U.S. political history.




19 thoughts on “Observations On The Acquittal Of Clinton Lawyer Michael Sussmann

  1. Maybe legally there was no cause to remove the jurors, but the way even the average Clinton voter (not necessarily independents) view Trump is that he is the epitome of evil. If the situation had been reversed, the media would be crying foul that Trump voters convicted someone. The whole thing was so politicized by the media that I don’t know if you could find an impartial jury in a liberal or a conservative state.

    • That last line is the most germane. This reminds me of the discussion we had on SCOTUS recusal rules, and the convenient fiction of impartiality: The system wouldn’t work if you couldn’t wave past some things, and your voting history would have to be one of those things. 150 million Americans voted in 2020… What’s left for the jury? People who came of age since and people apathetic enough not to vote?

  2. Everyone who has been on a jury discovers two troubling phenomena: 1) jury pool members lie either to be excused from the jury or to get on the jury. 2) judges can shape the decision of the jury by what they allow to be told the jury. Clearly, this trial was rigged from the start. Fortunately, John Durham has the strength of character and the tenacity to keep on turning over more stones to expose the corruption of Clinton, the DNC, and the Deep State. The opera isn’t over until the fat lady sings.

    • Durham couldn’t get Sussman to turn on Marc Elias and Hillary. I think he’s running out of viable options. Maybe he’s playing a long game, but I’m just not terribly hopeful. If he’s got to stay in the D.C. District Court, he’s doomed. Maybe he could remove the entire exercise to Montana.

  3. The biggest lie of the Big Lies: “Anyone can grow up to be president.” Nope. Not true. You’ve got to be part of the cabal.

    • Donald Trump is a huckster and a narcissist. He also possesses incredible determination, self-confidence, and courage. What most analysts either don’t understand or don’t have the courage to admit is Trump is one of the most dangerous persons to lead a country in more than a century. What made him dangerous are a multitude of factors. These include. His striving hard to keep his campaign promises. His ability to produce tangible results. His ability to persevere and succeed during the campaign and Presidency despite a constant onslaught of unprecedented ferocity by the Democrats, the media, career bureaucrats, and many Republicans. He unabashedly took on many issues with unconventional approaches and mostly positive results. Illegal Immigration, ISIS, NATO, North Korea, Middle East Peace Process to name a few

      Donald Trump demonstrated you can still be elected to the highest political job in the land and not be part of the system. His ability to be elected President with no prior elected experience is unprecedented in modern times. This is precisely why he had to be stopped. Those who are not part of the system must be destroyed.

      • Thank you for articulating and expanding my point, Tom.

        And how many presidents haven’t been narcissists and hucksters (BILL CLINTON???) to one degree or another. Aren’t those attributes virtual requirements for running for elective office?

        • Thanks, OB.
          As it relates to most Presidents and most high-ranking bureaucrats, and national and state politicians I think you are correct.

          Unfortunately, Trump only exposed a small fraction of the Washington Cabal’s corruption and duplicity. They really could care less about serving the electorate or the Constitution. Their primary goals seem to be the acquisition and exercise of power coupled with growing their personal wealth. I am sure there are also quite a few true believer progressives, particularly in the various bureaucracies and newsrooms who feel the Constitution and American Exceptionalism are an abomination to mankind.

          Regrettably, since the machine is so entrenched, and the brain-dead electorate keeps reelecting the incumbents it is hard to fathom how this abomination can be corrected.

      • And Joe Biden shows that you can be a member of the system all your life and still be unfit. He was actually 29 when first elected to the Senate, although he hit 30 before he was sworn in. He was a Senator for thirty-six years and Vice-President for eight. He DID have a big part in authoring the 1994 crime bill, (which he’d just as soon forget now), but that’s really about it as far as proactive anything. He pushed for strict enforcement of laws regarding violence against women, but that’s kind of a joke given his own behavior towards women (which he and the media would like everyone to forget). He was a mediocrity as Vice President. He was only nominated in 2020 because the only other choice was Bernie Sanders, who was even older, had already had one heart attack, and who was so far left he almost fell off. He only won because he was able to drop out of sight and turn the election into a referendum on Trump when the nation appeared to be spiraling out of control. So far he’s been a disaster as president, probably the biggest disaster I’ve seen in my life, and I say that as someone who saw Nixon fly away from the White House, watched the news count off the days the hostages remained in Iran under a feckless Carter, saw Reagan’s presidency almost unravel because of the Iran-Contra dirty dealings, watched Bush the Elder win decisively in Kuwait, then piss it all away as the economy tanked, saw Clinton destroy the idea that a president had to have any kind of character requirement, saw Bush the younger win decisively in Afghanistan, then overreach in Iraq, watched Obama botch nearly everything, create a remedy for healthcare worse than the problem,,and keep a recovering economy from recovering at anything faster than a creep. THEN I saw Trump, who spewed a lot of mean tweets, but got the economy moving again, tried to keep his promises, and finally faced a lethal combination of a pandemic and widespread race riots, all with the media and the Democratic Party waging a war against him. Now we’ve got Biden, who’s made damn sure the economy won’t recover, undone everything we did in Afghanistan, and can’t open his mouth without someone from his staff later having to walk it back. In 2 years he’s placed this country in frankly the worst place it’s been in since probably 1974. Yet the media still make excuses for him and he is probably going to run again for four more years. Despite the tanking quality of life here and the obvious economic problems that stare everyone in the face from the pump, his party and the media want to insist that everything is fine, and that we’re just “transitioning.” Funny, but I seem to remember a much more cognitively astute president named Hoover insisting that “prosperity is just around the corner,” as the nation was gripped by the Great Depression. Where did that get him? Obama could hide behind his color and say a vote against him was a racist vote, so he got his second term without too much trouble (it helped that too many conservatives decided they’d rather lose on principle than win on compromise). Biden can’t do that. and Harris can’t cover him with her protective mantle of color because she is so unpopular that she’s a liability. The Democratic Party’s platform is reduced to abortion for all, guns for none, and pronoun control. There may be a lot of bluster about how the single women and the young people will come out in droves for reproductive freedom, and how this latest tragedy is going to be the tipping point that gets America to finally turn against guns, but I think not even Biden believes that, nor do his handlers. So he’s left with one last card to play: demonize the other side. Call the other party racist, sexist, xenophobic and an existential threat. Put all the problems in this country on the other party and say a vote for them is a vote for fascism. Grab onto every bad thing that happens and say it’s their fault. Roe v. Wade gets overturned? It’s not that the original decision was legally flawed and based on a right that never existed, it’s that those Republicans have been waging a 50-year campaign to turn American women into the Handmaiden’s Tale. A man barely a legal adult commits mass murder? Don’t blame the broken home he came from, don’t blame everyone who saw red flags and didn’t say a word, don’t blame the teachers who didn’t secure the school, don’t blame the police who handled the incident poorly, and definitely don’t blame him, the guy who pulled the trigger. It’s those damn evil Republicans again, who just can’t see how much better this country would be if no one had guns except the police and military.

        It’s a tough sell and they know it. BUT, they know there’s that base of dyed-in-the-wool partisans who eat, sleep and breathe blue, and who will vote for them no matter what. The hope at this point is that they can scare, cajole, or bully enough of the uncommitted over to their side to put them over the mark one more time. Will it be enough? I really doubt it, and I think they do too. The same folks who were talking two years ago about who they were going to kick out of public life, imprison, or worse are secretly fearful that those folks may come very soon to do the same to them. Hatred, spite, and revenge are not a good policy platform, and they are an even worse precedent to set.

  4. Any Federal criminal law practitioners out there? Could Durham move for a change of venue?

    JOE CONCHA: Well, Donald Trump got 5.4% of the vote in Washington D.C. in 2020. Right? The fact that this jury was going to be sympathetic and friendly to Hillary Clinton’s campaign lawyer, is not surprising, especially when that jury had Clinton donors on it.

    • OB,
      Someone well-known (I’m conveniently blanking on the name) said something like, “Show me the man and I’ll find you the crime.”

      While some would assert that this applies to Durham (whom I believe to be an honest broker), I’m convinced that this aphorism really applies to DJT and attempt after attempt to, first, prevent his nomination, then prevent his election, and, finally, remove him from office by any means necessary. I’m not certain how many ethics rules the H4A campaign may have violated, but I think I’d need both my fingers and toes to count them, if not more.

      • I think the jury is still out on what Durham is up to, frankly, MB. He may have a grand strategy but he may be simply effecting some complex ruse to protect the DOJ and the FBI and the D.C. establishment?

        • OB, I agree that Durham may be trying to protect the institutions you name; after all, he’s been a loyal servant for quite some time, in a variety of positions. While he almost certainly has a roadmap and grand plan in mind, whether it will reach to someone who can be charged as former AG Bill Barr’s characterization hints of the ’16–’19 attempts to destroy DJT as “sedition,” (interview with Glen Beck on Blaze earlier this week), is anyone’s guess. Our only choice is to wait and watch for developments as he climbs the ladder, legally (and pray that he’ll get a venue change for future trials).

  5. Given, that we have middle class political prisoners held for months in isolation in DC jails for trespassing while millionaire lawyers with key card access to the FBI building can straight up lie with impunity, it has become painfully obvious to relatively intelligent people that the court system in DC has become so corrupted that any verdict coming out of it is suspect. We are officially a banana republic

  6. I am puzzled by point 2. Is lying to the FBI not a crime in and of itself, like perjury? Or would that be cutting too close to the Fifth Amendment?

    Either way, I thought that there was a concept called an “inchoate offense” that negated “no harm, no foul”. That is, if a person believes they are committing a crime and then it turns out they didn’t, they can still be charged for an inchoate offense, like “attempted something or other”. There’s probably all sorts of exceptions to this that I don’t know about, but is there a reason Sussmann wouldn’t be charged and found guilty of attempting to deceive the FBI even if they were in on the deception anyway?

    Speaking of which… Did the defense successfully argue for the existence of a deep state FBI conspiracy against Trump? What’s going to happen when people hear about that? Does Durham get to go after the FBI now as well based on the evidence that the defense must have presented in order to obtain this result? People are going to have to engage maximum doublethink and pivot from “there is no deep state, and anyone who even entertains such an idea is an evil moron” to “good thing the deep state protected democracy from Trump, because he’s such a lying racist fascist who’s also a stooge for Putin.”

    • the question is 1) was it a material lie, and 2) did the jury believe it was worthy of punishment? There is no question the lawyer lied. But if the lie couldn’t have done any harm or changed the direction of the investigation, then it would be, arguably, too trivial to matter.

  7. Yet federal agents (who seldom ask a suspect a question that they don’t already know the answer to) routinely charge people with lying to a federal agent, and federal prosecutors pressure those charged to confess to the crime, even in cases where, as you said, “the lie couldn’t have done any harm or changed the direction of the investigation…” If I were ever to be investigated for a federal offense, the only thing they will hear from me is that I will speak to no one except my attorney. Talking to federal agents these days is just too risky to one’s life, liberty and property. We have finally achieved the government that the Anti-Federalists warned us about, and the half has not yet been comprehended by the general public.

    • Yeah, but it’s great to be able to sweat the accused, right? It’s even better to be able to sweat the witnesses, who might have had zero to do with any wrongdoing, by telling them “consider your words VERY carefully before you answer. Lying to us, whether by commission or omission, can land you in the Federal prison system for five years, and there’s no parole there, you’ll definitely do the full five. Lying or leaving something out to protect your friend isn’t worth that.” (it helps if you can imagine Jeremy Sisto or Zeeko Zaki saying it).

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