[MSNBC of all places] Special Counsel John Durham was tasked with investigating the origins of the FBI’s Russia investigation. He now appears to have ended his work not with a bang, but with a whimper.It is hard to see how the case Durham filed on Thursday against Washington lawyer Michael Sussmann meets Justice Department standards. The indictment alleges that Sussmann met with FBI General Counsel Jim Baker in September 2016 to provide information about connections between a Russian bank and the Trump Organization. The FBI was unable to substantiate any links between Alfa Bank and former President Donald Trump’s businesses, but the charge against Sussman — making false statements to the FBI — doesn’t allege that the substance of the information was false. Instead, Sussman is accused of having misrepresented on whose behalf he was providing it.
A grand jury only needs to find probable cause that a crime was committed to return an indictment, but DOJ policy requires a higher standard. Before putting a person through the expense, burden and stigma of criminal charges, a prosecutor should make a determination "that the admissible evidence will probably be sufficient to obtain and sustain a conviction." This case comes woefully short of that standard.
Let’s start with the easy one — admissible evidence. The indictment appears to rely on the handwritten notes of an assistant director with whom Baker spoke after his meeting with Sussmann. The notes state, among other things, "Said not doing this for any client."
Anyone who’s played the game "Telephone" understands that as information is repeated, it often gets altered along the way. Instead, testimony at trial must be based on personal observation. If the prosecution attempted to offer these notes or even the writer’s testimony about what he heard Baker say before he wrote them as evidence, either would likely be ruled hearsay.