This indictment is so weak that it is sad
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.,,,
The case is equally weak on the merits. Although making false statements to an FBI agent is a serious crime, the government must be able to prove each and every element of the offense. Here, at least two of the five elements cannot be met.
First, Sussmann maintains that he did not make the statement. Many defendants deny misconduct, but this time it may work. In most false statement cases, the precise language of the statement at issue is memorialized in some way — the transcript of testimony under oath, a written submission, or a recorded oral statement. If not, the federal agency will usually provide two or more witnesses who personally heard the statement. Here, it appears that the whole case is built on the testimony of one witness, Baker. And in a he said, he said faceoff, the ties goes to the defendant.
In addition, it is not clear that Baker will be a strong — or even willing — witness. In a closed-door meeting with Congress in 2018, Baker testified that he did not recall whether Sussmann had represented himself as working on behalf of the Democratic Party or Hillary Clinton’s presidential campaign. Hardly the star witness needed to convict in the absence of all other evidence.
The case is equally weak on the merits. Although making false statements to an FBI agent is a serious crime, the government must be able to prove each and every element of the offense. Here, at least two of the five elements cannot be met.
First, Sussmann maintains that he did not make the statement. Many defendants deny misconduct, but this time it may work. In most false statement cases, the precise language of the statement at issue is memorialized in some way — the transcript of testimony under oath, a written submission, or a recorded oral statement. If not, the federal agency will usually provide two or more witnesses who personally heard the statement. Here, it appears that the whole case is built on the testimony of one witness, Baker. And in a he said, he said faceoff, the ties goes to the defendant.
In addition, it is not clear that Baker will be a strong — or even willing — witness. In a closed-door meeting with Congress in 2018, Baker testified that he did not recall whether Sussmann had represented himself as working on behalf of the Democratic Party or Hillary Clinton’s presidential campaign. Hardly the star witness needed to convict in the absence of all other evidence..
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