Sussmann
© Fox News/screenshot
Michael Sussmann
That Joffe used Sussmann to feed supposed intel to the DOJ supports the false statement charge against Sussmann, but will the jury learn of this?

Rodney Joffe, the tech executive responsible for giving the Hillary Clinton campaign the data used to peddle the Alfa Bank hoax, served as a confidential human source for the FBI. Yet on at least one occasion, former Clinton campaign attorney Michael Sussmann admits relaying a tip from Joffe to a high-level Department of Justice official. That Joffe used Sussmann, and not his handler, to feed supposed intel to the DOJ supports the special counsel's false statement charge against Sussmann, but whether the jury will learn of this fact remains to be seen.

Last fall, Special Counsel John Durham charged Sussmann with lying to former FBI General Counsel James Baker when Sussmann met with Baker on September 19, 2016, to provide Baker data and whitepapers purporting to establish a secret communications network between Donald Trump and the Russian-based Alfa Bank. Prosecutors claim Sussmann told Baker that he was sharing the information on his own, when in fact Sussmann represented both the Clinton campaign and Joffe.

Trial on the one-count false statement charge began earlier this week in a federal court in Washington D.C. Sussmann's legal team previewed their theory of defense for the jury during Tuesday's opening argument.

Sussmann shared the Alfa Bank data with the FBI out of a genuine national security concern and not on behalf of the Clinton campaign, they argued, telling jurors Sussmann wanted to give Baker a heads-up about an impending New York Times story. That was not something the Clinton campaign wanted, Sussmann's lawyers maintained — even though the facts don't fit that storyline.

The defense team also rejected the idea that Sussmann was representing Joffe when he met with Baker. Sussmann's Latham and Watkins attorney claimed in his opening argument:
"Sussmann wasn't there to promote Mr. Joffe's interests either. Mr. Joffe had nothing to gain from this meeting."
From the jury's perspective, that argument may well seem persuasive. After all, presiding judge Christopher Cooper has already axed one motive prosecutors hoped to suggest to the jury when he ruled pre-trial that the special counsel could not admit into evidence an email Joffe sent shortly after Trump's November 2016 victory over Clinton. The email read:
"I was tentatively offered the top [cybersecurity] job by the Democrats when it looked like they'd win. I definitely would not take the job under Trump."
But, absent evidence that Joffe had, in fact, been tempted with a position in a Clinton administration, the email would not be allowed, the court ruled, eliminating mention of that possible motive.

The defense team's argument that Joffe had no reason to use Sussmann to share the Alfa Bank information with the FBI also received a boost when trial testimony on Tuesday revealed that at the time of Sussmann's meeting with Baker, Joffe was a confidential human source, or a "CHS," for the FBI. Questioning by the defense team further indicated that in September 2016, when Sussmann was allegedly meeting with Baker on behalf of Joffe, Joffe had presented his handler, FBI Special Agent Tom Grasso, a copy of the Alfa Bank whitepaper.

Not only would there be no reason for Joffe to use Sussmann to push the Alfa Bank intel to the FBI but, as Sussmann's attorney posited during opening argument,
"If anything, if Mr. Sussmann had told the FBI about Mr. Joffe, they would have taken all of this more seriously, not less, given who Mr. Joffe is."
This line of defense is eminently reasonable, but like Sussmann's attempt to sell the jury on the claim that the Clinton campaign did not want him going to the FBI, the facts say otherwise.

In early 2017, Sussmann told a DOJ Office of Inspector General special agent in charge that an unnamed client
"had observed that a specific OIG employee's computer was 'seen publicly' in 'Internet traffic' and was connecting to a Virtual Private Network in a foreign country."
While Sussmann did not inform the OIG of his client's identity, in January 2022, Sussmann's lawyers informed the special counsel's office that his "unnamed client" was Joffe. Sussmann's legal team also alerted Durham to the fact that Sussmann had not merely shared his tip with a special agent, but personally met with Inspector General Michael Horowitz.

So, the precise scenario Sussmann's lawyers told the jury was illogical, according to Sussmann's own narrative of what happened in March of 2017:
Sussmann, on behalf of Joffe, shared intel with someone high-up in the DOJ, without revealing Joffe's role in gathering the evidence — something Sussmann's lawyers stressed would have provided the data more gravitas given Joffe's reputation. At that time Joffe, still served as a CHS, with his termination for cause only coming years later in 2021.
What possible benefit, then, was there for Joffe to task Sussmann with meeting on his behalf with the DOJ's inspector general, as opposed to Joffe providing the intel to his handler? Who knows! Whatever the reason, we do know that Sussmann met with the DOJ inspector general on Joffe's behalf, without revealing his client's identity — a scenario Sussmann's defense claims is inconceivable.

Sussmann's meeting with the CIA in February 2017 also follows this pattern, with Sussmann allegedly sharing supposed intel of a connection between the Russian-made Yota phones and Trump, on behalf of the unnamed Joffe. While the trial court ruled the government may admit evidence related to this February 2017 meeting with the CIA in Sussmann's trial, the problem for prosecutors is that they must still convince the jury that Sussmann represented Joffe during the CIA meeting.

The special counsel does not face that hurdle, however, on Sussmann's meeting with the DOJ's inspector general, because it was Sussmann's legal team who alerted prosecutors to the fact that Sussmann had met with the inspector general on behalf of Joffe.

Sussmann taking Joffe's intel anonymously to the DOJ's OIG supports the prosecutor's argument that when Sussmann met with Baker on September 19, 2016, he was likely representing an unnamed Joffe. But whether the special counsel will seek to admit this evidence remains to be seen.
About the Author:
Margot Cleveland is The Federalist's senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize — the law school's highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.