Durham to call former FBI general counsel James Baker to testify in case of former Clinton campaign attorney

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Special Counsel John Durham plans to call former FBI General Counsel James Baker to testify in the case against former Clinton campaign attorney Michael Sussmann, who was recently indicted for making false statements to the FBI.

During a virtual status hearing Tuesday, government prosecutors on Durham's team signaled their intention to call Baker to testify as part of the Sussmann case. Sussmann has pleaded not guilty to one count of making a false statement to a federal agent. 

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Durham's indictment alleges that Sussmann told then-FBI General Counsel James Baker in September 2016 that he was not doing work "for any client" when he requested and held a meeting in which he presented data and evidence of a purported secret communications channel between then-candidate Donald Trump and Alfa Bank, which has ties to the Kremlin. 

The indictment against Sussmann says he lied to Baker when he presented data linking the Trump Organization to a secret server that communicated with Alfa Bank. The indictment indicates Durham may be expanding his investigation to bring separate charges again Sussmann or additional defendants. 

Michael Sussmann attends the Washington Post’s sixth annual cybersecurity summit on Oct. 6, 2016.

U.S. District Judge Christopher Cooper on Tuesday asked both the government and Sussmann's defense to continue moving forward in their discovery process, which could take months, due to the thousands of pages of classified material involved. 

During the hearing, government prosecutors said, at this point, that they had provided Sussmann's attorneys with 6,000 documents – amounting to up to some 80,000 pages. 

Earlier this month, in a court filing dated Oct. 20, Durham and his team outlined its first production of discovery to the defense, which included the thousands of documents, and documents received "in response to grand jury subpoenas issued to fifteen separate individuals, entities and organizations--including, among others, political organizations, a university, university researchers, an investigative firm, and numerous companies." 

Cooper said he understood that the process would be cumbersome but urged both the prosecution and the defense to come up with a target date for a trial later this year or early next. 

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Both the prosecution and the defense signaled they are aiming for a trial to begin in the spring of 2022. 

The next court date in the matter is set for a status hearing on Dec. 8 at 2 p.m. 

Baker, who serves as deputy counsel at Twitter, left the FBI in May 2018 after serving as a top lawyer at the FBI. Baker was also a confidante of former FBI Director James Comey.

Baker told House investigators in 2019 that he was personally involved in the Foreign Intelligence Surveillance Act (FISA) warrant application to surveil then-Trump campaign aide Carter Page. The FISA warrant relied largely on the unverified anti-Trump dossier, compiled by former British intelligence officer Christopher Steele and funded by the Democratic National Committee and Hillary Clinton's presidential campaign through law firm Perkins Coie.

James Baker, who served as FBI general counsel, left the bureau in 2018. 

Sussmann's indictment is the second prosecution to come out of the Durham's probe. 

In 2020, Durham charged former FBI lawyer Kevin Clinesmith with making a false statement – the first criminal case arising from his probe. Clinesmith was referred for potential prosecution by the Justice Department's inspector general's office, which conducted its own review of the Russia investigation.

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Specifically, the inspector general accused Clinesmith, though not by name, of altering an email about Page to say that he was "not a source" for another government agency. Page has said he was a source for the CIA. The DOJ relied on that assertion as it submitted a third and final renewal application in 2017 to eavesdrop on Page under FISA. 

Former Attorney General Bill Barr appointed Durham, then the U.S. attorney from Connecticut, in 2019 to investigate the origins of the FBI’s original Russia probe, or Crossfire Hurricane, which began in July 2016, through the appointment of Special Counsel Robert Mueller in May 2017 shortly after Mueller completed his yearslong investigation into whether Trump's campaign colluded or coordinated with the Russians to influence the 2016 presidential election.

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Barr, in December 2020, before leaving the Trump administration, tapped Durham as special counsel to continue his investigation through the Biden administration. 

In the scope order, Barr stated that Durham "is authorized to investigate whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counter-intelligence, or law-enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, III."

Under U.S. code, the special counsel would produce a "confidential report" and is ordered to "submit to the Attorney General a final report, and such interim reports as he deems appropriate in a form that will permit public dissemination."

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Last week, Attorney General Merrick Garland testified that Durham is "still in action" investigating the origins of the Trump-Russia probe. 

"I think you can readily assume that his budget has been approved," Garland said. "We don’t normally make a statement about those said things." 

Garland added: "You would know if he weren’t continuing to do his work."