The Trials of John Durham

Photo-Illustration: Intelligencer. Photo: United States Attorney’s Office, District of Connecticut

A much-touted prosecution among conservatives — one that supposedly provided confirmation that Donald Trump was the victim of the “witch hunt” that was the Trump-Russia investigation — got considerably stranger this week, following a series of revelations in court filings that go to the heart of the case.

The prosecution was brought in September by John Durham, the special counsel who was first appointed by former attorney general William Barr, against Michael Sussmann, a lawyer for Hillary Clinton’s presidential campaign. The charge against the lawyer is that he lied to former FBI general counsel Jim Baker in a September 2016 meeting in which Sussmann lobbied Baker to investigate unexplained communications between an email server at Trump’s company and the Russian Alfa Bank. In particular, the indictment claims Sussmann falsely told Baker “that he was not acting on behalf of any client” and “was conveying the allegations as a good citizen” but that he was actually working on behalf of Clinton’s campaign.

The case against Sussmann, one of three people Durham has prosecuted, was curious to many observers from the start because of how unusual it was from a prosecutorial and evidentiary perspective. Baker was only one witness, but he took no notes, and he gave testimony to Congress that suggested he did not remember what Sussmann had told him about whom (if anyone) Sussmann was representing at the meeting. The indictment made two other allegations to buttress its main claim: (1) that immediately after the meeting, Baker spoke to another senior official, who wrote in notes that Sussmann “said [he was] not doing this for any client,” and (2) that Sussmann made a similar misrepresentation to officials at another government agency during a meeting in February 2017.

The latest drama began on Monday, when Sussmann’s lawyers argued in a filing that Baker had provided conflicting recollections of the meeting to investigators; Sussmann’s team appended excerpts from the relevant reports that the government had produced in the course of discovery. According to a 2019 transcript, Baker testified that Sussmann had told him he was meeting with Baker to provide him with information “that he said related to strange interactions that some number of people that were his clients, who were, he described as I recall it, sort of cyber-security experts, had found.” In 2020, according to an interview summary, Baker recalled “that Sussmann did not specify that he was representing a client regarding the matter, nor did Baker ask him if he was representing a client,” and that “it did not seem like Sussmann was representing a client.”

The following day, Durham’s team responded by saying this was true but that Baker later accurately recalled what had happened by relying on notes that other officials had written. The team wrote that Baker had made those statements “before he had the opportunity to refresh his recollection” with notes that have been provided to the defense and that he had “affirmed and then re-affirmed his now-clear recollection of the defendant’s false statement” in three later interviews. His team also represented that there was a second set of notes taken by “another high-ranking official” in the FBI general counsel’s office during a meeting with Baker that indicated Sussmann “told Baker he had ‘no specific client.’”

It would be a considerable understatement to say this is all very messy and abnormal. The case now officially turns in large part on a relatively obscure evidentiary rule that allows lawyers to “refresh the recollection” of a witness, usually when he does not remember something. Here is how it might work: You attend a meeting alone with someone, take no notes, and later cannot remember a key fact, but it turns out you recounted the meeting to a colleague, and when you review that colleague’s notes, you remember the fact in question. Those notes are not admissible evidence themselves — they reflect multiple levels of hearsay — but if you are on a witness stand, your lawyer can show you the notes, and then, having had your recollection “refreshed,” you can testify about it. That hypothetical sounds a lot like what the government claims happened with Baker, but there is a crucial difference between (a) not remembering something at first and later recalling it and (b) remembering something differently over time.

You could reconcile some of the versions of Baker’s account that were at issue this week: The July 2019 transcript, for instance, is consistent with Sussmann telling Baker he got the information from some clients but that he was providing it to the FBI “as a good citizen,” as the indictment alleges. And, of course, we do not know what is in the other accounts that Baker has given to the government. Perhaps it is all exceedingly credible when you hear it from Baker himself. Still, it is very unusual and very risky to build a prosecution around the memory of a single witness — particularly someone who, at best, could not remember the key fact in question until years later using other people’s notes and, at worst, recalled it in materially different ways over time.

The conduct of Durham’s team provides further reason to maintain some skepticism toward any claims it makes that have yet to be tested in an adversarial proceeding. That is one reason why it has been surprising to see so much of the media treat the Igor Danchenko indictment and all of its claims about the Steele dossier as if they are unquestionably true in all their minute details. The Danchenko indictment is not the most complicated one I have ever seen, but it is easily the most convoluted — stuffed with totally unnecessary details (on the so-called pee tape, for instance), crammed into dubious legal categories, in a way that makes clear that their inclusion has much more to do with advancing Durham’s conservative-friendly public-relations campaign than with establishing that Danchenko broke the law.

I have no idea whether Sussmann or Danchenko will ultimately be convicted (though I have serious doubts as to Sussmann), and I have no interest in defending the Steele dossier. For all I know, all of Durham’s various allegations and insinuations across both cases are correct. But it used to be widely recognized that the government’s allegations in a criminal case are just that, unless and until they are established at a trial, and that a healthy amount of skepticism is always a good idea, particularly when a prosecutor has been less than completely trustworthy.

The fervor among liberals and the media for the Mueller investigation seemed to diminish that sentiment. Durham may end up reviving it.

The Trials of John Durham