Ex-FBI lawyer says he's 'confident' that Clinton lawyer denied representing any client at meeting

The former top lawyer for the FBI testified Thursday that he was “100% confident” that Democratic lawyer Michael Sussmann told him he was not representing a client when he approached him in September 2016 about purported ties between a Russian bank and Donald Trump.

The testimony by James Baker, the FBI’s former chief counsel, is viewed as crucial to special counsel John Durham’s charge against Sussmann that he lied to the FBI when he told Baker he was not representing a client during their meeting.

According to prosecutors, Sussmann was actually acting on behalf of the Hillary Clinton presidential campaign and a private cybersecurity researcher as part of an effort to gin up an “October surprise” by getting the FBI to investigate the alleged Trump-Russia link.

"I'm not here on behalf of any particular client,” Baker said Sussmann told him before turning over memory sticks and a sheaf of printed materials describing the allegations about purported computer messages exchanged between Alfa Bank, owned by oligarchs close to Vladimir Putin, and the Trump Organization.

At the time, the FBI was already investigating allegations of possible links between the Trump campaign and Russia. But the allegations that Sussmann brought to Baker about Alfa Bank prompted the bureau to launch a new probe that fizzled when bureau experts analyzed the data and concluded that “there was nothing there,” Baker testified.

There was considerable anticipation about Baker’s testimony given that he was a former colleague of Sussmann’s from when they both worked at the Justice Department and, as he testified, considered Sussmann a friend. Still, defense lawyers have zeroed in on prior inconsistencies in Baker’s account of their meeting, noting that in previous testimony to Congress he asserted that he couldn’t remember whether Sussmann informed him that he was representing a client in the meeting.

But Baker’s memory was apparently refreshed when he was shown notes from other senior FBI officials about a briefing he gave them after the session with Sussmann.

Additionally, last March, Baker turned over a text message he said Sussmann sent him the night before the meeting, which read: "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.”

The next day, Baker told the court, Sussmann entered the FBI building carrying an official bureau pass he had received in part because of the work he did with the FBI on cybersecurity issues.

Sussmann, whose law firm, Perkins Coie, represented the Clinton campaign and the Democratic National Committee, warned Baker that major news outlets were aware of and interested in the material he had and were interested in publishing a story about the information relatively quickly, according to Baker’s testimony.

Baker told the court he considered Sussmann’s information important and sensitive enough that he reached out "as quickly as I could" to Bill Priestap, the FBI’s counterintelligence chief at the time.

He said he told Priestap he thought the issue was urgent and advised him that Sussmann had told him he was not representing a particular client.

Notes of the conversation taken by Priestap and entered into evidence at Sussmann's trial stated, however, that Sussmann represented the DNC, Baker testified.

Under cross-examination, Baker acknowledged that he did learn at some point that Sussmann was representing the Clinton campaign, but he couldn't remember when. He indicated that he trusted Sussmann's assurances that he was not representing any specific client because he had known Sussmann for years and had worked with him.

Durham was initially appointed by Trump’s Attorney General William Barr to investigate the origins of the U.S. government’s probes into Trump under the theory that the FBI and other agencies were being used by the Clinton campaign as political tools to damage Trump. Sussmann’s trial is the biggest test of Durham’s work to date and the first criminal case he has brought that has gone to trial.

In court documents and statements, lawyers for Sussmann have insisted he approached the FBI not on behalf of the Clinton campaign or the Democratic Party but simply as a concerned citizen who was genuinely alarmed at the national security implications if Trump was engaged in secret communications with a Russian financial institution.

Sussmann’s lawyers have also argued that it made no difference to the FBI whose behalf he said he was there on, because the bureau would have taken the same steps to investigate the material even if agents knew it came from the Clinton campaign and its associates.

Moreover, Marc Elias, a former Perkins Coie lawyer who represented the Clinton campaign, testified Wednesday that the campaign would not have wanted Sussmann to approach the FBI with the Alfa Bank information, and at the time officials knew nothing about him doing so.