The Morning Dispatch: Former Clinton Campaign Attorney Acquitted in Russia Probe

Happy Wednesday! A typical White House press briefing nowadays receives between 20,000 and 50,000 views on YouTube, but yesterday’s edition is at 2 million and counting. 

The spike is no doubt attributable to the public’s rabid interest in National Economic Council Director Brian Deese’s thoughts on inflation, and has nothing to do with members of the international Korean “KPop” sensation BTS (Bangtan Sonyeondan or “Bulletproof Boy Scouts”) dropping by to talk about Asian representation and the rise in anti-Asian hate crimes.

Quick Hits: Today’s Top Stories

• In a New York Times op-ed published Tuesday night, President Joe Biden announced the United States will provide Ukraine with “more advanced rocket systems and munitions” so it can “fight on the battlefield and be in the strongest possible position at the negotiating table.” Biden had said Monday his administration would not send Ukraine any rocket systems that could strike across the border into Russia and wrote yesterday his administration is “not encouraging or enabling” Ukraine to do so. Biden also claimed in his op-ed the United States “will not try to bring about” Russian President Vladimir Putin’s ouster, despite him saying a few weeks ago Putin “cannot remain in power.” 

• The United Nations’ International Atomic Energy Agency said Monday Iran has almost enough near-weapons-grade enriched uranium to make a nuclear bomb and hasn’t provided credible answers to the agency’s questions about the material’s existence. Negotiations between Iran, the Biden administration, and a handful of other nations have largely stalled over the United States’ refusal to remove the Foreign Terrorist Organization designation from Iran’s Islamic Revolutionary Guard Corps (IRGC).

• Taiwan’s defense ministry reported Monday that China sent 30 warplanes through its air defense identification zone in an incursion that coincided with a previously unannounced visit to Taipei by U.S. Sen. Tammy Duckworth. A Taiwanese military pilot died during a training exercise this week—the third such military plane crash since January—underscoring concerns the island’s military isn’t prepared for a potential Chinese invasion.

• The Supreme Court sided with social media platforms on Tuesday, blocking a Texas law that prohibits companies with more than 50 million monthly active users from moderating content based on “viewpoint.” The 5-4 decision—with Justices John Roberts, Brett Kavanaugh, Amy Coney Barrett, Stephen Breyer, and Sonia Sotomayor in the majority—will prohibit enforcement of the law while tech companies’ challenges work through the lower courts.

• U.S. home prices were a record 20.6 percent higher in March 2022 than March 2021, according to the S&P CoreLogic Case-Shiller National Home Price Index. The measure represents a slight increase from February’s 20 percent year-over-year growth, but operates on a two-month lag. Home prices have begun to level off or fall in recent months as heightened mortgage interest rates put a damper on consumer demand.

• Eurozone inflation reached 8.1 percent year-over-year in May, up from a 7.4 percent annual rate in April and March. In a move likely to drive energy prices even higher, European Union lawmakers have agreed to cut oil purchases from Russia in phases, embargoing about 90 percent of Russian oil imports by the end of the year. They’ll meet to officially pass the plan—which includes an exemption for oil sent via pipeline to overcome Hungary’s veto threat—on Wednesday.

• Canadian lawmakers introduced legislation on Monday that, if passed, would prohibit Canadians from buying, selling, importing, or transferring handguns. The sweeping changes—which are expected to become law—would also require owners of “military-style assault weapons” to participate in a mandatory government buyback program and implement red-flag laws allowing judges to temporarily take firearms from a person deemed to be a danger to himself or others. “As a government, as a society, we have a responsibility to act to prevent more tragedies,” Prime Minister Justin Trudeau said. “We need only look south of the border to know that if we do not take action, firmly and rapidly, it gets worse and worse and more difficult to counter.”

• A federal jury on Tuesday acquitted Michael Sussmann—an attorney with ties to Hillary Clinton’s 2016 presidential campaign—on a charge of lying to the FBI about whether he was working on the campaign’s behalf when he passed information to the Bureau alleging ties between Donald Trump’s campaign and a Russian bank. The jury deliberated for a few hours Friday afternoon and Tuesday morning before reaching its verdict in the case, which was brought by Special Counsel John Durham. 

• Sihle Zikalala—premier of South Africa’s KwaZulu-Natal province—said over the weekend that the death toll attributed to recent flooding in the eastern and coastal parts of the country has risen to at least 459 people. The region has had several severe storms in recent weeks.

John Durham Swings and Misses in Sussmann Investigation

It’s bizarre now—like looking back into another life—to remember the days of the investigation into possible connections between the campaign of then-President Donald Trump and Russia, during which a remarkable number of liberals in both media and pop culture convinced themselves that the day was coming when Special Counsel Robert Mueller would reveal his shocking findings, indict everyone within a mile of the Trump campaign, and rid America for good of this turbulent president.

They never ascended to the heights of Muellermania, but for the last couple of years, Trump’s allies have carried a torch for a special counsel of their own: John Durham, who was appointed in 2019 to examine the origins of the Russia probe and, specifically, the question, long belabored by those sympathetic to Trump’s assertion that the whole thing was a “witch hunt,” of whether it was launched as part of a partisan effort to hobble his presidency before it could begin.

As we’ve written in the past, Durham’s investigation has allegedly uncovered some embarrassing and unethical behavior on the part of some of Trump’s adversaries—particularly the Clinton campaign’s role in planting an early (and highly dubious) Trump-Russia story in the press about a week before the 2016 election. But the probe has so far made few moves as far as actual criminal prosecutions are concerned—extracting a guilty plea from former FBI attorney Kevin Clinesmith (who got probation and community service) and indicting a Democratic lawyer, Michael Sussmann, both on charges of felony false statements.

Yesterday, in federal court, a jury found Sussmann not guilty.

Durham’s case had been relatively straightforward. In late 2016, Sussmann was an attorney at Perkins Coie, a firm known for its work with prominent national Democrats; he himself was performing billable work for the Clinton campaign. In September of that year, Sussmann had sought a meeting with his friend James Baker, general counsel at the FBI, to bring to his attention information that supposedly showed a concerning connection between the Trump organization and a server registered to a Russian company, Alfa Bank.

The information, it turned out, was bad. When the Clinton campaign planted it in the press, it fell apart within a day. But Durham’s indictment was less interested in the bad intelligence than in the fact that Sussmann, in bringing the information to Baker, hid his own relationship with the campaign and its bearing on the matter.

“During the meeting,” Durham wrote in the indictment, “Sussmann stated falsely that he was not doing his work on the aforementioned allegations ‘for any client,’ which led the FBI General Counsel to understand that Sussmann was acting as a good citizen merely passing along information, not as a paid advocate or political operative.”

That Sussmann in fact lied about this is in little doubt. Initially, Durham’s case was more or less solely reliant on the testimony of Baker himself, who testified that Sussmann had made these statements. After charges were filed, a text message from Sussmann to Baker came to light that bolstered that testimony: “Jim—it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. Do you have availability for a short meeting tomorrow? I’m coming on my own—not on behalf of a client or company—want to help the Bureau. Thanks.”

Nevertheless, Sussmann was found not guilty. There are a couple of possible reasons for this.

One, Durham’s case relied heavily on Baker’s recollection that Sussmann claimed to be working on his own, and Sussmann’s team did yeoman’s work casting doubt on the reliability of that testimony in the minds of the jury. (Since the indictment only concerned the events of the day of the meeting itself, the revelation of the text message may actually have worked in Sussmann’s favor; his lawyers argued Baker might have misremembered Sussmann’s assertion from the text as having taken place during the meeting. Sussmann denies having concealed his role with the Clinton campaign to Baker during the meeting.)

Two, while “don’t lie to law enforcement” is good lay legal advice for a reason, it’s not actually the case that all untrue statements to the FBI are criminal under law. The untrue statement has to be “material” to the matter at hand—meaning it has to at least potentially affect how the body you’re lying to will continue to conduct its investigation.

This concept—the materiality of a lie—doesn’t often come up at criminal trials, for a simple reason: Most people who lie to cops are suspects of crimes or friends of suspects, and the point of the lies is to put them off the scent of crimes.

“Usually the materiality is more clear-cut,” John Malcolm, a fellow at the Heritage Foundation and former federal prosecutor, told The Dispatch. “You lie to exonerate yourself, or you lie to exonerate a friend or a family member. The lie is very clear-cut in terms of its connection to the underlying investigation. It’s rare you would get a charge that says, well, the facts are the facts of the underlying investigation, but this explains the motivation of the person coming forward to the FBI. It’s a more nuanced thing. And that’s one of the reasons it always struck me it was going to be a close case.”

A skeptic might argue—as Durham’s team did—that the materiality of Sussmann’s lie was obvious: He was trying to make Baker more likely to “bite” on the story by posturing as a mere concerned citizen rather than a paid operative laundering the opposition research of a political campaign. Sussmann’s counsel countered that the lie (if there had been a lie, which, again, Sussmann denies) couldn’t have been material, because his role as a Team Democrat lawyer was already well known at the FBI.

Whatever the reason, the basic takeaway is obvious: Durham failed to convince the jury beyond a reasonable doubt that Sussmann had told a material lie during his interview with Baker. Naturally, this doesn’t exonerate Sussmann or the Clinton campaign from all the apparently skeevy behavior surrounding the interview in the first place. There’s little doubt from Durham’s filings that the Clinton campaign tried to use a flimsy Russia allegation as its killshot in the 2016 campaign, and tried to enlist the help of federal law enforcement in doing so.

But it’s important not to lose sight of the ultimate context here. There’s a reason, beyond the opportunity to point out unethical behavior by Team Clinton, why Trumpworld has been all over the Durham investigation: They want to write off the whole “witch hunt” as fruit of a poisoned tree. But the Alfa Bank story appeared on the scene in late October 2016 and almost immediately disintegrated; if that had been all there was to the Trump/Russia story, Robert Mueller would never have become a household name.

Whether other heads are yet to roll in the Durham investigation remains to be seen. For now, its boosters are left reconciling themselves to the same reality that faced Mueller’s fans a few years prior: Whatever the outcome, it’s probably not going to scratch the itch for vengeance you had in mind.

Worth Your Time

• In response to a Vox article making the case for renaming “natural gas,” Ben Dreyfuss devoted his latest Good Faith newsletter to many progressives’ obsession with wording and branding over substance. “Let me start by explaining what’s going to happen to you if you decide in your actual life to call natural gas ‘fossil gas,’” he writes. “‘Blah blah blah fossil gas.’ ‘What is fossil gas?’ ‘Natural gas but let me tell you why I call it fossil gas.’ And that person is then going to leave and never come back. They aren’t your friend anymore. They hate you. You used a term you hoped they didn’t know just so they would have to ask you to explain it so you could have an opportunity to give them a speech. It’s like when people use Latin terms and then immediately explain what it means in English. Why are you using this term you expect me not to know? Is this a Latin class? Language is supposed to be a way that people communicate meaning from one party to another. If someone asks you to bring them some fruit and you bring them a tomato and they say ‘I asked for fruit’ and you say ‘well technically tomato is a fruit,’ you’re an a——.”

• With rumors floating that the Biden administration is now, finally, for real this time on the precipice of forgiving a chunk of student debt via executive action, Sen. Ben Sasse proposes the U.S. do something more lasting about the cost and value of American higher education. “The biggest problem facing most young Americans isn’t student debt; it’s that our society has lost sight of the shared goal of offering them a meaningful, opportunity-filled future with or without college,” Sasse writes in The Atlantic. “We’ve lost the confidence that a nation this big and broad can offer different kinds of institutional arrangements, suited to different needs. What we say we want for Americans entering adulthood and what we actually offer them are disastrously mismatched. Debt forgiveness would not just be regressive; it would be recalcitrant. A massive bailout would increase the cost of education and stifle the kind of renaissance higher ed desperately needs.”

• Iranian protesters are in the streets decrying skyrocketing food prices, and Shay Khatiri argues at The Bulwark that the Biden administration should support them. “Failing to engage this enormously popular protest movement in Iran is a major unforced error for the Biden administration,” Khatiri writes. “It is also not a harmless mistake. Political violence is following these protests, and attacks against clergy, security forces, and regime-affiliated institutions are increasing. There is every reason to expect the regime to defend itself by whatever means appear necessary, especially as it loses the support of its ‘starving and shoeless’ base. But it is not too late for the Biden administration to change course. Instead of passively worrying what supporting the protests might mean for its diplomatic aims regarding arms control, the administration can proactively strengthen its negotiating position by providing meaningful support to the Iranians taking to the streets to bring freedom to their country.”

Something Fun

Presented Without Comment

Also Presented Without Comment

Also Presented Without Comment

Toeing the Company Line

• David’s latest French Press (🔒) offers a grim update on the war in Ukraine, particularly in the eastern Donbas region. “Russia is now fighting the war its way, and Russia’s early setbacks do not herald its ultimate loss,” he writes. “Unless Ukraine and the West can confront and overcome the Russian meat grinder, I’ll repeat the warning I issued all the way back on March 1—the first flare of hope is likely to be forgotten amid the ashes of defeat.”

• Miss the live taping of The Remnant’s 500th episode? Try the next best thing: This week’s Dispatch Live is a video of the event complete with discussions on America’s future and institutions, rank punditry from A.B. Stoddard and Chris Stirewalt, and Sen. Ben Sasse in an extremely shiny gold jacket.

• On the site today, Jonah argues that voters—not gun lobbyists—hold more power over Republican lawmakers’ positions on guns, and Samuel J. Abrams writes that colleges and universities shouldn’t forsake the value of some online instruction in their haste to move past pandemic education policies.

Let Us Know

Have you been following developments in the Durham investigation? If so, were you surprised by the verdict in the prosecution of Michael Sussman?