Michael Sussmann – Further Evidence of an Ailing Criminal Justice System

The Michael Sussmann verdict is in and surprise, surprise, yet another leftist operative escapes justice – in this case for putting the nation through four years of hell with a dirty political trick. The fact that one man escaped justice is not the end of the world. After all, our system is designed to give defendants the benefit of the doubt – or in legal parlance reasonable doubt. It is however one more data point on a very disturbing trend line of our criminal justice system.

Equal justice under the law has always been the bedrock of our republic. Laws clearly define what is, and isn’t, acceptable social behavior. Via the application of written laws, justice (as in equal treatment) is achieved – so long as application of those laws remains uniform. It’s how we ensure such things as minority or social status remain irrelevant in court.

Good laws are written in such a way as to codify criminal behavior with objective criteria. The intent being to take subjectivity out of charging and conviction decisions – thus promoting blind equal justice. When done right, facts are weighed against the criminal criteria and subjectivity is kept out of it.

For example, lying to a federal agent is illegal. But to be a chargeable crime the behavior must meet certain criteria. A false statement must be made to a federal agent. The false statement must be made intentionally (simple errors don’t count). The false statement must be material to an investigation. Lying to the feds about the weather isn’t a crime.

Prosecutors are only to charge individuals whose behavior has met all of these criteria.

Judges are to ensure that an impartial jury is empaneled. To the maximum extent possible the judge must ensure that the jury is likely to reach an objective – not subjective – decision based on the legal criteria and the facts.

Juries are to consider the facts against the codified legal criteria. Are the facts presented credible? Do those facts meet the criteria for criminal behavior? If the jury answers both of those questions in the affirmative, they must convict. Their personal desires are irrelevant.

But when judges, juries, and prosecutors ignore the legal criteria, subjectivity cancels objectivity, and the emotions of men take primacy over justice. Which brings us back to the Sussmann trial.

In 2016 Michael Sussmann visited the FBI chief legal counsel James Baker. He provided him with a flash drive of computer internet traffic which purported to show a secret communication channel between the Donald Trump organization and the Kremlin. Sussmann informed Baker that he was not working for any client. He even sent Baker a written text message stating such.

However, that was a false statement and the Durham investigation literally had the receipts to prove it. Lawyers don’t do anything for free. Sussmann had charged his time for the Baker meeting to the Hillary Clinton campaign. He had even billed the campaign for the purchase of the flash drive.

So, the lie was documented. But was it material to an investigation? It certainly was, because it triggered an overzealous FBI to begin its investigations into Donald Trump. The data Sussmann provided was quickly found to be a gigantic nothing burger. However, it triggered a chain of events that eventually led to Crossfire Hurricane and the Mueller investigation. At trial, Baker stated that he would have never referred the information for investigation had he known that it originated from an opposing political party. That’s how material it was.

Let’s take a look at the codified criteria:

• False statement made to the FBI – check
• False statement intentionally made – check
• Material to an investigation – check

So, John Durham took it to trial.

The judge ensured that an impartial jury was empaneled which included:

• Donors to Hillary Clinton, Joe Biden, and Alexandria Ocasio-Cortez
• Self-proclaimed Trump haters
• One juror whose daughter plays on the same sports team as Michael Sussmann’s daughter (I kid you not)

In the least surprising verdict of the century, they found Sussmann not guilty. The jury forewoman stated that they felt Sussmann should have never been charged because the nation faces bigger problems (than 4 years and $30 million investigating a hoax). The jury decided they new better what was appropriate legal behavior than those who write the laws.

Jury nullification occurs when a jury decides a case based on factors other than the legal criteria and the facts. They essentially nullify the law because they don’t like it, or because they do like the defendant. It’s an unethical behavior, which the forewoman of the Sussmann jury proudly admitted to.

Let’s compare the Michael Sussmann case to the Michael Flynn case. Flynn made an error while talking to two FBI agents – during an ambush perjury trap which had been setup by Mr. “I don’t do weaselly things” James Comey. Even though the agents judged that Flynn was not lying (remember, and error is not a lie), the DOJ charged him anyway – because like the Sussmann jury, the prosecutor didn’t care what the legal criteria said. After a change of leadership at the DOJ, Bill Barr ordered a review of the Flynn case. The new prosecutor reviewed the charges against the legal criteria:

• False statement made to agents – check
• False statement made intentionally – nope, not in the opinion of the interviewing agents
• Material to an investigation – nope

It didn’t even come close to being criminal behavior. The prosecutor recommended that charges be dropped. But the judge, the Honorable Emmet Sullivan, refused to accept the recommendation – because like the Sussmann jury, his “feelings” about the defendant trumped the law.

Sussmann and Flynn are only two data points in a long and growing list of examples of our criminal justice system gone awry.

As an FBI attorney, Kevin Clinesmith falsified evidence to a FISA court. He didn’t even lose his law license.

Andrew McCabe lied about his role in leaking confidential information to the press and sent FBI investigators off on a wild goose chase. He was never charged. Though he was fired, his full pension was later reinstated by Merrick Garland.

James Wolfe was a staffer on the Senate Intelligence Committee. In 2018, he was arrested for leaking highly classified documents to the reporters. It seems he was cultivating relationships with young female reporters. If any Republican did the same thing, it would be considered espionage. But Wolfe worked out a sweetheart deal with the DOJ, to plead to a false statement charge (the same violation Sussmann was charged with), and serve only 2 months in the slammer. Not bad for spying and exposing national secrets – it pays to be connected to the right politicians. But Hillary Clinton got off even lighter than that.

Hillary destroyed records that were under a protection order (which would be obstruction of justice). She also violated federal law by exposing classified documents in an unsecure environment (a violation of the espionage act). Hillary was never charged – because like the Sussmann jury, James Comey and Loretta Lynch simply didn’t want to.

When the law is no longer equally applied, a person’s future no longer depends on their own behavior, but on the whims of judges, juries, and prosecutors. Where does it end? Will jury nullification become the norm rather than a rare exception? Will confidence in our criminal justice system continue to ebb? Will men continue to obey laws that are applied capriciously? What happens when compliance with the law no longer ensures safety from penalty? Will unequal application of laws result in a loss of deterrence to criminal behavior? Will crime go up or down?

When we are no longer accountable for our actions, but only who we are associated with, we will have created a tyranny with all of the window dressing of a constitutional republic.

Whether or not John Durham is able to achieve any convictions going forward, his prosecutions are still important – and quite clever. We mustn’t forget that he works for Merrick Garland. If he were to simply write a report detailing the dirtiest political trick in US history, Garland would ensure that the report would never see the light of day. He would classify and bury it. The Durham investigation would fade quietly into obscurity.

But what John Durham is doing is smarter than that. He’s giving us the full report in a form that Garland cannot hide – indictments and court records. He’s giving us a chance to see the evidence, and decide what to do about it. Given the likelihood of further jury nullification, that’s about all he can do.

Author Bio: John Green is a political refugee from Minnesota, now residing in Idaho. He currently writes at the American Free News Network and The Blue State Conservative.  He can be followed on Facebook or reached at greenjeg@gmail.com

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