Michael Sussmann

On April 28, 2016, DNC CEO Amy Dacy informed Sussmann of a data breach. Sussmann contacted Shawn Henry, CSO and President of Crowdstrike Services. The next day the DNC claimed to have been "tipped-off" that the hacking was by Russians.[2]

Beginning in 2017, president Donald Trump and his allies alleged the FBI investigation, leading to the Mueller investigation, of possible contacts between his associates and Russian officials was a "hoax" or "witch hunt" that was baselessly initiated by his political enemies. In May 2019 attorney general Bill Barr appointed U.S. attorney John Durham to investigate the origins of the FBI investigation.[3] In September 2020 The New York Times reported Durham had expanded the scope of his inquiry to include an examination of how the FBI had investigated the Clinton Foundation, after no basis for prosecution had been found by the FBI or later by John W. Huber, a special investigator appointed by Trump's first attorney general Jeff Sessions.[4][5] After more than two years of his investigation, Durham had secured but one indictment, against FBI attorney Kevin Clinesmith, on a charge unrelated to the opening of the FBI investigation.[6]

Durham's grand jury indicted Sussmann in September 2021, alleging he made a false statement to FBI general counsel James Baker during a meeting they had in September 2016. At the meeting, Sussmann presented what he and others believed was evidence of potential communications between computer servers at the Russian Alfa-Bank and the Trump Organization.[7] The indictment alleges Sussmann told Baker he did not represent a client for the purposes of their meeting, when he was actually representing the Hillary Clinton 2016 presidential campaign. Sussman had stated during a 2017 congressional deposition that he sought the meeting with Baker on behalf of an unnamed client, a cybersecurity expert who had analyzed the server communications data.[7] As with the charge against Clinesmith, the charge against Sussmann was unrelated to the opening of the FBI investigation into Trump associates and Russians, which occurred in July 2016, and which was the original basis of Durham's investigation.

During a 2018 congressional deposition, Baker stated, "I don’t remember [Sussmann] specifically saying that he was acting on behalf of a particular client," though the Durham investigation found handwritten notes taken by assistant director of the FBI Counterintelligence Division Bill Priestap which paraphrase Baker telling him after the meeting that Sussmann "said not doing this for any client." The notes also say "Represents DNC, Clinton Foundation, etc.," though they did not say Sussmann told Baker this during the meeting; Baker had also said during his deposition that he was generally familiar with Sussmann's work, as they were friends. The Priestap notes constitute hearsay and it was not clear if they would be admissible in court as evidence under the hearsay rule.[7][8]

The New York Times reported Durham had records showing Sussmann had billed the Clinton campaign for certain hours he spent working on the Alfa-Bank matter. His attorneys said he did so because he needed to demonstrate internally that he was engaged in billable work, though the work involved consulting with fellow partner Marc Elias, and the campaign paid a flat monthly fee to Perkins Coie but was not actually charged for those billed hours.[7]

After Sussmann's indictment, The New York Times reported that in addition to analyzing suspicious communications involving a Trump server, Sussmann and analysts he worked with became aware of data from a YotaPhone — a Russian-made smartphone rarely used in the United States — that had accessed networks serving the White House, Trump Tower and a Michigan hospital company, Spectrum Health. Like the Alfa-Bank server, a Spectrum server also communicated with the Trump Organization server. Sussmann notified CIA counterintelligence of the findings in February 2017, but it was not known if they were investigated.[9]

In a December 2021 court filing, Sussmann's attorneys presented portions of two documents provided to them by Durham days earlier which they asserted undermined the indictment. One document was a summary of an interview Durham's investigators conducted with Baker in June 2020 in which he did not say that Sussmann told him he was not there on behalf of any client, but rather that Baker had assumed it and that the issue never came up. A second document was a June 2019 Justice Department inspector general interview with Baker in which he said the Sussmann meeting "related to strange interactions that some number of people that were his clients, who were, he described as I recall it, sort of cybersecurity experts, had found." The New York Times reported that the narrow charge against Sussmann was contained in a 27-page indictment that elaborated on activities of cybersecurity researchers who were not charged, including what their attorneys asserted were selected email excerpts that falsely portrayed them as not actually believing their claims. Trump and his supporters seized on that information to assert the Alfa-Bank matter was a hoax devised by Clinton supporters and so the Trump-Russia investigation had been unjustified. Sussmann's attorneys told the court that the new evidence "underscores the baseless and unprecedented nature of this indictment" and asked that his trial date be moved from July to May 2022.[10] A Durham prosecutor later asserted that subsequent to his 2019 and 2020 interviews, Baker "affirmed and then re-affirmed his now-clear recollection of the defendant’s false statement" after refreshing his memory with contemporaneous or near-contemporaneous notes.[11]