Sussmann defense grills Baker during cross-examination, claims inconsistencies in testimony

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WASHINGTON, D.C. — Defense attorneys for Michael Sussmann grilled former FBI General Counsel James Baker during cross-examination Thursday afternoon, claiming apparent inconsistencies in his sworn testimony before the jury, the Justice Department inspector general, and Special Counsel John Durham regarding whether Sussmann brought Trump-Russia allegations to the FBI on behalf of a client.

Baker has testified during the Sussmann trial that the defendant told him he was not bringing information alleging a covert communications channel between the Trump Organization and Russia’s Alfa Bank to the FBI on behalf of any client, but rather as a citizen concerned with national security.

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Sussmann has been charged with making a false statement to the FBI when he told Baker in September 2016, less than two months before the presidential election, that he was not doing work "for any client" when he requested and attended a meeting where he presented "purported data and ‘white papers’ that allegedly demonstrated a covert communicates channel" between the Trump Organization and Alfa Bank, which has ties to the Kremlin.

James A. Baker is a former American government official at the Department of Justice who served as General Counsel for the Federal Bureau of Investigation (FBI) (Michigan Law)

Durham’s team alleges Sussmann was, in fact, doing work for two clients: the Hillary Clinton campaign and a technology executive, Rodney Joffe. Following the meeting with Baker, Sussmann billed the Hillary Clinton campaign for his work.

Sussmann has pleaded not guilty to the charge. 

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During cross-examination Thursday afternoon, Sussmann’s defense attorney Sean Berkowitz presented Baker transcripts of his sworn interviews over the course of the past several years with a number of government officials — all of which were part of separate Trump-Russia investigations.

In each interview, Baker was asked, in different ways, if he knew Sussmann was representing a client when he brought the Trump-Alfa Bank allegations to the FBI.

During sworn testimony before Justice Department Inspector General Michael Horowitz in 2019, Baker said the Trump-Alfa Bank information was found "by some number of people that were [Sussmann’s] clients… sort of cyber-security experts."

Berkowitz focused on Baker’s use of the word "clients" in this setting.

Baker defended himself and his years-old testimony to the DOJ IG, saying that at that time, he was "not particularly focused on this client issue."

"I was being attacked in the media, social media, Fox News, all of which I thought was completely wrong and still do to this day, in any event, that's where my mind was," Baker said Thursday.

Photo of John Durham and Michael Sussmann.  Sussman pic:  Perkins Coie (Perkins Coie)

Berkowitz also presented Baker an interview he participated in with Durham at FBI Headquarters in June 2020, in which he was asked whether he knew Sussmann had been representing the Democratic National Committee and the Clinton campaign on "other matters" than the hack of Democratic Party email servers at the time he brought the Trump-Alfa Bank allegations to their Sept. 19, 2016 meeting.

"Your recollection was that you did not know that Mr. Sussmann was representing the DNC in other matters [than the email hack] — the opposite of what you said today," Berkowitz asked.

"Over time, I have had a hard time placing exactly when it was that I learned that information," Baker said.

Baker referenced notes presented as evidence to the jury Thursday written by former FBI Assistant Director of Counterintelligence Bill Priestap about Baker’s September 2016 meeting with Sussmann.

Priestap’s notes state "DNC" and "Clinton Foundation" near Sussmann’s name — Baker claims Priestap likely meant to write "Clinton campaign."

Baker stressed that Priestap’s notes told him that he "must have known" that Sussmann was representing the DNC and the Clinton campaign prior to the Sept. 19, 2016 meeting.

Meanwhile, Berkowitz also hit Baker for not memorializing or taking notes from that meeting with Sussmann.

Berkowitz showed phone records of calls between Baker and Sussmann after the September 2016 meeting. Berkowitz asked whether Sussmann could have told Baker he was working on behalf of a client during those follow-up phone calls.

"No," Baker said.

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Baker has stressed repeatedly throughout questioning on both Wednesday and Thursday that Sussmann told him he was not doing work on behalf of any client when bringing the Trump-Russia allegations to the FBI.

James Baker, who served as FBI general counsel, left the bureau in 2018. Official FBI photo. (Official FBI photo)

Earlier in the day, Baker testified that he was "100% confident" Sussmann told him he was not at the meeting in September 2016 "on behalf of any particular client." 

Baker, during testimony Wednesday, explained that the 2016 meeting was initially requested by Sussmann via text message to his personal phone on Sept. 18, 2016.

Durham, in a filing in the weeks leading up to the trial, referenced these text messages, saying "the night before the defendant met with the general counsel, the defendant conveyed the same lie in writing and sent the following text message to the general counsel’s personal cellphone."

Baker testified that he had forgotten about the text conversation and found it in response to a request from the government earlier this year. Baker said that in March, Durham asked him to "look for" emails and other communications he may have had with Sussmann

"I’m not out to get Michael and this is not my investigation, it’s yours," Baker told the prosecution. "Nobody had asked me to go look for this material before that." 

Baker testified that upon finding the text messages, he notified the government through his attorney "as quickly as I could," and said that same afternoon, FBI agents "came to my house."

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Baker explained his relationship with Sussmann, saying the two were "friends" who had kept in contact, but testified that he was "a bit surprised" to receive the texts.

"I was a bit surprised to get it from Michael, kind of wondered how he got my personal cell number, but Michael is a friend so it didn’t really freak me out," Baker testified. "I trust Michael, it seemed to me at the time it was very important and so I thought I should meet with him right away."

The government presented the text messages to the jury for consideration Wednesday.

The text message stated: "Jim — it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss," the text message stated, according to Durham. "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."

Baker replied, "OK. I will find a time. What might work for you?"

Sussmann replied: "Any time but lunchtime you name it."

"2:00pm in my office? Do you have a badge or do you need help getting into the building?" Baker responded.

"I have a badge. Please remind me of your room #," Sussmann said.

Baker on Wednesday explained he thought Sussmann could have a badge to admit him into the FBI Headquarters due to the work he often did with clients and law enforcement.