Last month Washington was rocked by the indictment of Michael Sussman, former counsel for Hillary Clinton’s 2016 presidential campaign and the Democratic National Committee, for his alleged role in spreading a false Russia conspiracy theory. Special counsel John Durham — who is variously described as either painfully methodical or positively glacial as a prosecutor — reportedly was prompted to indict Sussman by an expiring statute of limitations.
Absent such a deadline involving Sussman, it seems unlikely that Durham would have disclosed as much as he did in the indictment. The reason is that he is likely focusing on other possible targets and witnesses. That could include the most notable figure exposed in the Sussman indictment: Jake Sullivan.
In that event, Sullivan potentially could be in the unenviable position of having to argue that he was not perjurious, just clueless, in denying knowledge of key facts to Congress. The “ignorance is bliss” defense is a favorite fallback in Washington scandals but it is less common when that person is the current national security adviser to the President of the United States.
While an indictment of Sullivan is viewed as unlikely, he popped up unexpectedly in the indictment and the National Security Advisor may not be done with Special Counsel. If Durham is focusing on who knew or approved of the Alfa Bank conspiracy claim in the Clinton campaign, one of the highest figures referenced in the indictment (and just below Hillary Clinton) is Sullivan.
With Sussman, Durham indicted someone who he believes intentionally hid the role of the Clinton campaign in creating and pushing Alfa Bank scandal. In testimony to Congress, Sullivan also insisted that he did not know the Alfa Bank scandal was the work of a Clinton lawyer and people associated with the campaign. It is not clear if Durham has evidence to contradict his claim of total ignorance on the work performed by campaign counsel and campaign researchers.
Lying to Congress is neither easy nor common for prosecution, though Special Counsel Robert Mueller prosecuted figures like Roger Stone on that basis. Michael Cohen was also indicted for lying to Congress the involvement of Donald Trump in negotiations over a Moscow real estate deal. Sullivan will have to argue that, despite being one of the top campaign advisers, he was unaware of campaign’s prior work on developing the allegation.
The Sussman indictment refers to a wide array of characters responsible for creating the alleged conspiracy theory about a secret communications link between the Trump campaign and the Kremlin through Russia’s Alfa Bank. The unsupported claim was allegedly orchestrated in part by Sussman, who was then a partner at the law firm Perkins Coie; another partner at the time, Marc Elias, was the general counsel for the Clinton campaign and played a significant role in pushing the infamous Steele dossier.
The indictment revealed that the Alfa Bank theory was never viewed as particularly credible by the researchers tasked with creating it. Those researchers warned that it would be easy to “poke several holes” in the claim and see the data as “a red herring.” Yet, as with the Steele dossier, the Clinton operatives were counting on an enabling media to ask few questions before the election. The researchers were told they should not look for proof but just enough to “give the base of a very useful narrative.”
We now know the identities of many of the figures described in the 27-page indictment. The researchers appeared in part to be operating out of Georgia Tech, including one who, according to the indictment, warned “Tech Executive-1” in mid-2016 that “we cannot technically make any claims that would fly public scrutiny. The only thing that drives us at this point is that we just do not like [Trump].”
According to media reports, the mysterious “Tech Executive-1” mentioned in the indictment appears to be Rodney L. Joffe, who was the chief cybersecurity officer at Washington tech contractor Neustar Inc. Joffe, 66, also was a longtime client of Sussman’s and reportedly boasted that he was offered a high-ranking position in the Clinton administration, if she won the election.
In his emails, Joffe pushed for any documentation that could be used as a foundation for the campaign: “Being able to provide evidence of anything that shows an attempt to behave badly in relation to this, the VIPs would be happy.”
That brings us to Sullivan.
As soon as the conspiracy theory was packaged and delivered the FBI and the media by Sussman, the indictment recounts an exchange between some of those “VIPs”: “… on or about September 15, 2016, Campaign Lawyer-1 exchanged emails with the Clinton Campaign’s campaign manager, communications director, and foreign policy advisor concerning the Russian Bank-1 allegations that SUSSMANN had recently shared with Reporter-1.” The campaign lawyer reportedly was Elias, and the “foreign policy advisor” reportedly was Sullivan.
Sullivan was quoted in an official campaign press statement as stating that the Alfa Bank allegation “could be the most direct link yet between Donald Trump and Moscow.” In the statement, Sullivan said: “Computer scientists have apparently uncovered a covert server linking the Trump Organization to a Russian-based bank. This secret hotline may be the key to unlocking the mystery of Trump’s ties to Russia … This line of communication may help explain Trump’s bizarre adoration of Vladimir Putin.”
The U.S. intelligence community ultimately rejected the Alfa Bank conspiracy. It also concluded that the Steele dossier not only relied on a suspected Russian agent but likely was used by Russian intelligence to spread disinformation through the Clinton campaign.
Yet, when Sullivan was later questioned by Congress, he went full Sergeant Schultz, claiming he basically did not have a clue about the basis or origins of the Alfa Bank controversy or other campaign-orchestrated scandals. Sullivan was adept at laying qualifiers upon qualifiers to render statements useless: “broadly speaking, at some point in the summer, and I don’t remember exactly when it was, around the convention, I learned that there was an effort to do some research into the ties between Trump and Russia.” That will make any false statement claim difficult absent direct involvement in the planning of these “campaign efforts.”
Sullivan denied knowing that Elias or Sussman were working for the Clinton campaign, despite numerous news articles identifying Elias as the campaign’s general counsel. Sullivan just shrugged and said: “To be honest with you, Marc wears a tremendous number of hats, so I wasn’t sure who he was representing. I sort of thought he was, you know, just talking to us as, you know, a fellow traveler in this — in this campaign effort.”
That seems odd, given Sullivan’s long, close involvement with Clinton and her campaigns. He advised her during the 2008 Democratic presidential primaries and later became her deputy chief of staff and policy planning director at the State Department. He was one of the notable names in Clinton’s email scandal and the recipient of her controversial order to strip the classification headings on a key email. He later rejoined Clinton again during the 2016 campaign as one of her senior-most advisers.
Yet, the lack of disclosure over those behind the “campaign effort” seems suspiciously consistent. Sussman was indicted for allegedly hiding his representation of Clinton in pushing the Alfa Bank conspiracy. Elias was accused of doing the same with reporters on the Steele Dossier. He also reportedly sat next to campaign chair John Podesta when he denied such connections to Congress. Now Sullivan denies any knowledge of the campaign’s early role in these scandals.
It is notable that, when Sullivan was Clinton campaign’s foreign policy adviser, President Obama was given a national security briefing of Clinton’s alleged plan to tie then-candidate Trump to Russia as “a means of distracting the public from her use of a private email server.” That briefing was on July 28, 2016 — three days before the Russia investigation was initiated.
This brings us back to Durham’s calendar. Sullivan reportedly gave his series of denials to Congress in December 2017. The statute of limitations for lying to Congress is five years, which means that Sullivan still would be within range for Durham if the special counsel does not buy Sullivan’s denials. He could also find himself unindicted but entirely exposed in a report that is likely to be blistering.
If so, Sullivan could find himself a “fellow traveler” with Sussman — not “in this campaign effort” but in Durham’s still-unfolding prosecution effort instead.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.