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Margot Cleveland: The Special Counsel proved the FBI belongs to the swamp

By Margot Cleveland

Yesterday, after less than one full day of deliberations, a D.C. jury stacked with pro-Hillary Clinton jurors acquitted former Clinton campaign attorney Michael Sussmann, proving the FBI is not “ours” but the swamp’s.

Just more than two weeks ago, prosecutor Brittain Shaw began opening statements in United States v. Sussmann, by stating the obvious: “Some people have very strong feelings about politics and about Russia, and many people have strong feelings about Donald Trump and Hillary Clinton.”

“But we are not here because these allegations involve either of them,” Shaw continued. “Nor are we here because the defendant’s client was the Clinton campaign.” Rather, “we are here because the FBI is our institution that should not be used as a political tool for anyone; not Republicans, not Democrats, not anyone.”

But after hearing overwhelming evidence that Sussmann lied when he told the then-FBI General Counsel James Baker he was providing data and whitepapers about a supposed secret communications channel between Trump and the Russian-based Alfa Bank on his own behalf, when in fact Sussmann was representing both the Clinton campaign and tech executive Rodney Joffe, the 12 D.C. residents found Sussmann not guilty.

It was not the verdict, however, that confirmed that the FBI belongs to career bureaucrats, high-powered D.C. elites who revolve in and out of the government as political appointees, and the families and friends of all the above. Rather, it was the speed with which the acquittal came, coupled with the in-court testimony and other evidence exposed by the special counsel throughout the prosecution that proved the FBI isn’t America’s anymore.

After hearing from some 20 witnesses, all but a few testifying for the prosecution, the jury spent a couple of hours on Friday deliberating before the long Memorial Day weekend. Tuesday morning, the 12 jurors returned to the D.C. federal courthouse to continue deliberations. But after requesting to see a copy of Sussmann’s taxi receipt and one of the whitepapers Sussmann peddled to Baker, they delivered their verdict of “not guilty.”

In total, then, the jury did not even deliberate for a full day, which means not one of the 12 jurors pushed the other 11 to wade through the detailed evidence presented by the special counsel’s office. Who could blame them, though, if the government’s own witnesses registered more offense at Congress for investigating the Russia collusion hoax than they did at Sussmann for misleading the FBI.

Consider Baker, to whom Sussmann was charged with lying. The former FBI general counsel testified he was “100 percent confident” Sussmann said during their September 19, 2016 meeting that he was not representing a client. Baker also told the jury he likely wouldn’t have taken the meeting if he knew Sussmann represented the Clinton campaign.

Yet Baker blamed himself for throwing Sussmann “into a maelstrom” and expressed outrage at how the congressmen investigating the investigation into Trump and his campaign behaved when they questioned Baker about his meeting with Sussmann. Baker displayed not even a sliver of the same distress over his friend lying to him.

On the contrary, when asked why he had just discovered the text message Sussmann sent him the night before their meeting, in which Sussmann wrote, “I’m coming on my own – not on behalf of a client or company. [W]ant to help the Bureau,” Baker told prosecutors: “I’m not out to get Michael. This is not my investigation. This is your investigation. If you ask me a question, I answer it. You asked me to look for something, I go look for it.”

While Baker may no longer work for the FBI, he did at the time Sussmann fed him the Alfa Bank folly. As an American, he should have been appalled that the former Clinton campaign attorney would play the law enforcement and intelligence communities for political purposes. Also, had Baker pulled his cell phone records earlier, the text could have served as a separate false statement charge—one proven in black-and-white—but the delay in Baker finding the text allowed the statute of limitations to expire.

Bill Priestap, the assistant director of the Counterintelligence Division for the FBI in 2016, likewise displayed a grudging demeanor when testifying on behalf of the special counsel. When asked whether it was “important” for Sussmann “to fully disclose his ties to the Clinton campaign,” rather than provide a straightforward answer, Priestap sparred with the prosecutor, first saying it “would have been part of several factors.” Then, when pushed, Priestap said, “I’m struggling on your use of the word ‘important.’ It’s a motivation that is relevant, but not the only factor.”

Prosecutors, however, had ample other evidence that established the materiality of Sussmann’s misrepresentation to Baker. But the jurors didn’t care because the jury, in the truest sense, was a jury of Sussmann’s peers. Just as his actual colleagues, Baker and Priestap, shrugged off the Section 1001 false statement offense, so did the jury, who could easily envision their neighbors and friends sitting in his stead.

But the proof that the FBI is no longer “ours” came even before the jury verdict—months earlier, when Special Counsel John Durham revealed in a discovery update that the Department of Justice’s Office of Inspector General withheld evidence from Durham’s team.

The DOJ’s OIG is charged with conducting independent investigations related to DOJ employees and programs, including alleged misconduct by FBI agents. In preparing for the Sussmann trial, the special counsel’s office met with the OIG in October 2021 “to discuss discoverable materials that may be in the OIG’s possession.”

Even though the OIG possessed two of Baker’s FBI cellphones, prosecutors were not told of the phones’ existence by the OIG. Rather, the special counsel only learned of the two cellphones on January 6, 2022, when another FBI employee mentioned them.

The same discovery update that revealed the OIG had failed to mention Baker’s cell phones also noted that the OIG had falsely told Durham’s team that “a written forensic report” was the only information it possessed concerning a meeting between Sussmann and the OIG.

That meeting had occurred in early 2017, when Sussmann, on behalf of an unnamed client now known to be Joffe, went to the IG with a report that his 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.” The OIG provided the special counsel with the forensic report, but in doing so, also represented to prosecutors that it had ‘no other file[] or other documentation’ relating to this cyber matter.”

However, after Sussmann’s defense team informed Durham that Sussmann had personally met with the IG, the special counsel’s office circled back and, amazingly, the OIG discovered additional documentation related to Sussmann’s meeting with the IG. That the OIG—the entity charged with investigating FBI misconduct—withheld not one, but two pieces of evidence from the special counsel’s office until cornered should crush any remaining faith our country holds in the FBI.

And there was little trust left after the FBI launched Crossfire Hurricane on the most ridiculous of pretexts; after text messages revealed Lisa Page and Peter Strzok’s anti-Trump sentiments drove the Crossfire Hurricane team members; after the FBI and DOJ obtained four court surveillance orders based on fraud and then illegally surveilled Carter Page; after fired FBI Director James Comey leaked to the press, via an attorney friend, memos he had written following meetings with then-President Trump, to prompt the appointment of a different special counsel; and after FBI agent William Barnett told investigators that he believed Special Counsel Robert Mueller’s office used the prosecution of Gen. Michael Flynn “to get Trump.”

The special counsel’s prosecution of Sussmann offered an opportunity for the country to see at least a small acknowledgment that the politicization of the FBI would not be tolerated. Instead, Americans witnessed confirmation by former FBI agents, the OIG, and the DC jury that the FBI is theirs, not ours.

To view online: https://thefederalist.com/2022/06/01/the-special-counsel-proved-the-fbi-belongs-to-the-swamp/