A Respected Perkins Coie Lawyer Mixed National Security With Campaign Politics. Now He’s on Trial. | #computerhacking | #hacking

In October 2018, two dueling portrayals of Michael Sussmann appeared in the opinion pages of The Wall Street Journal.

Conservative columnist Kimberely Strassel tore into the former Perkins Coie partner for meeting with a top FBI lawyer weeks before the 2016 election to share information about possible links between then-candidate Donald Trump and Russia. Strassel called Sussmann a “point man” for the firm’s representation of the Hillary Clinton campaign and held up the meeting as proof that the bureau “strayed beyond obvious guardrails” in its zealous pursuit of Trump and his campaign.

A week later, the managing partner of Perkins Coie’s Washington, D.C., office offered a retort. Drafting a letter to the editor entitled “Our Man Michael Sussmann is an Honorable Man,” John Devaney described the attorney as a “nationally recognized privacy, cybersecurity and national-security lawyer” who worked in the U.S. Justice Department under presidents of both parties.

The clashing depictions of Sussmann—the respected cybersecurity lawyer adept at handling sensitive national security issues versus the conniving political operative exploiting his high-level connections in the U.S. government—are likely to be showcased again as Sussmann heads to trial Monday to fight a false statements charge.

Sussmann is accused of lying during the 2016 meeting with James Baker, who was then general counsel of the FBI, when he told Baker that he wasn’t sharing the Trump-Russia allegations on behalf of any client. The indictment brought by special counsel John Durham, who has been probing the origins of the FBI’s Russia investigation, alleges that Sussmann was representing both the Clinton campaign and a technology executive named Rodney Joffe, who used his expertise and influence in the cybersecurity industry to mine the internet for digital dirt on Trump.

Prosecutors claim Sussmann wanted to obscure the business and political motives behind the meeting, where he shared data and documents purporting to show puzzling online communications between an internet server for the Trump Organization and one for a Russian bank.

Sussmann has denied the allegations, and his defense lawyers at Latham & Watkins have called the prosecution politically motivated and beneath the standards of the Justice Department.

Sussmann’s case has become another flashpoint in the seemingly never-ending battle to shape the narrative of the Russia investigation. Attorneys familiar with Sussmann’s career said the allegations don’t square with the lawyer they’ve known, a man with deep respect for the FBI and DOJ who was known to take a thoughtful and balanced approach to delicate national security issues.

One lawyer who has worked with Sussmann described the situation as, simply, “sad.”

Responding to a ‘Revolution’

Prior to his work on Russian election interference in 2016, Sussmann spent years dealing with issues at the intersection of technology and national security, establishing himself among the top tier of cybersecurity lawyers in Big Law, according to people familiar with the practice.

He began his career at the Justice Department, where he went to work in 1997 as a senior counsel in the newly-created computer crimes and intellectual property section, helping DOJ respond to the emergence of cybercrime. Sussmann prosecuted computer hacking cases and worked on cutting-edge issues involving the collection and maintenance of digital evidence. He chaired the U.S. delegation to what was then the G-8 subgroup on high-tech crime.

“There is a revolution going on in criminal activity,” he wrote in a 1999 article for a Duke University law journal on the importance of international cooperation. “A criminal no longer needs to be at the actual scene of the crime (or within 1,000 miles, for that matter) to prey on his victim.”

Sussmann left DOJ in 2005 to join Perkins Coie’s cybersecurity practice. Albert Gidari, a former longtime partner at Perkins who hired Sussmann, said he wanted someone who could see “over the horizon” to anticipate the growth of tech start-ups and understand the varying demands of federal agencies.

“He readily got, in every meeting we were ever in, what the potential clients’ sensitivities were, what the policy questions might be surrounding access and how to manage the legal issues in a way that protected the client and didn’t run afoul of the law,” Gidari said.

(Courtesy photo)

Sussmann was deeply familiar with the inner workings of the FBI, DOJ and intelligence agencies. One lawyer who knows him said he saw himself “on the same team as the crime fighters in the government.”

Sussmann did wage high-profile legal battles with the federal government. Following outrage over disclosures about the warrantless surveillance of Americans, Sussmann represented Twitter in 2014 as the company sued the FBI and DOJ, seeking to reveal more information about national security requests from the federal government. 

Sussmann, his Perkins Coie colleagues and co-counsel at Mayer Brown accused the federal government of “unconstitutionally restricting” Twitter’s First Amendment rights to speak about its involvement in U.S. surveillance.

Twitter headquarters in San Francisco. (Photo: Jason Doiy/ALM)

After a prolonged court dispute, a federal judge in California sided with the government in 2020, finding the agencies had a right to restrict the release of information to protect national security. Sussmann did not join Twitter’s appeal, which remains pending in the U.S. Court of Appeals for the Ninth Circuit.

As cyberattacks became a growing threat to corporate America, Sussmann also focused a substantial portion of his practice on helping companies victimized by a breach or those who wanted to bolster their defenses.

“Part of it always is finding out what happened and, when you can, who is behind whatever has happened; how they were able to obtain access to the network; what they’re doing; what’s the persistence right now in the network; what are their capabilities; and then developing a plan for remediation that typically would involve kicking out the bad people and rebuilding the network,” Sussmann told the House Intelligence Committee in a 2017 deposition, describing his practice.

It’s that experience that led the Democratic National Committee to turn to Sussmann in the spring of 2016 when they learned someone infiltrated their network.

‘Highly Volatile and Controversial’

When the FBI initially sought information from the DNC in April 2016 about potentially nefarious cyberactivity, a fellow Perkins partner called Sussmann to help.

Days later, the DNC, an important client of the firm, confirmed that malicious actors gained access to its networks. The FBI and a cybersecurity firm hired by the DNC at Sussmann’s request soon determined the attack was carried out by Russian hackers as part of what U.S. intelligence agencies and special counsel Robert Mueller III later concluded was a deliberate effort by Russia to boost Trump’s campaign and disparage Clinton.

Sussmann took the lead in managing the hack and would spend the next several months at the intersection of national security and campaign politics. He later described the work to House investigators as “all-consuming.”

The work brought Sussmann in near-constant contact with Perkins Coie’s political law group, located two floors below his office in D.C., and its chair Marc Elias, a powerhouse Democratic lawyer who was serving as general counsel to the Clinton campaign.

Marc Elias, former partner with Perkins Coie. (Photo: Diego Radzinschi/ALM)

People who know Sussmann said he wasn’t known to be especially political, though Perkins Coie has deep ties to the Democratic Party. Federal Election Commission records show  Sussmann donated $10,800 to the Clinton campaign in the months before the election.

At the same time Sussmann was managing the DNC hack, Joffe, the technology executive, approached him in July 2016 to say he uncovered potentially secret online data links between the Trump Organization and Alfa Bank.

The claims were the result of an opposition research Joffe had commissioned, using nonpublic internet data, in hopes of building an “inference” or “narrative” tying Trump to Russia, according to Sussmann’s indictment. Durham’s prosecutors have produced emails appearing to show that researchers involved in the project, and Joffe himself, harbored doubts at various points about the accuracy of the data.

Nonetheless, in the ensuing months, Sussmann and Joffe met with Elias on multiple occasions and eventually involved the investigative firm Fusion GPS, hired by Perkins Coie to assist in its representation of the Clinton campaign. The group worked aggressively to press reporters to cover the Alfa Bank allegations. Sussmann repeatedly billed work on the effort to the Clinton campaign, according to the indictment.

Sussmann also decided to go to the FBI. He arranged a meeting on Sept. 19, 2016, with the FBI’s general counsel to pass along a flash drive containing the underlying data and three “white-papers” outlining the researchers’ conclusions.

Sussmann told House investigators that was not “looking for the FBI to do anything” and that he recognized that the information was “highly volatile and controversial.” He said the decision to go to the FBI was based on conversations he had with a client who provided him the data.

“We had a conversation, as lawyers do with their clients, about client needs and objectives and the best course to take for a client,” Sussmann told the House Intelligence Committee. “And so it may have been a decision that we came to together. I mean, I don’t want to imply that I was sort of directed to do something against my better judgment, or that we were in any sort of conflict, but this was—I think it’s most accurate to say it was done on behalf of my client.”

Sussmann had known Baker for years. Baker, who is set to be the government’s star witness at Sussmann’s trial, has said the two men’s paths “crossed repeatedly over the years.” Baker told the same House Intelligence Committee in his own deposition prior to Sussmann’s indictment that he didn’t sense anything untoward about the meeting at the time.

But with the origins of the Russia investigation under probe by Durham, Sussmann and his meeting with Baker fell under renewed scrutiny. He was indicted last September on a false statements charge for allegedly telling Baker during the meeting that he was not there on behalf of any client.

Sussmann resigned from Perkins Coie after the indictment was handed up.

J. Edgar Hoover FBI Building, Washington, D.C. (Photo: Diego M. Radzinschi/ALM)

Battle Lines Set for Trial

To convict Sussmann of making a false statement, prosecutors will need to prove that he lied to Baker and that the statement was capable of influencing the course of the FBI’s investigation into the Alfa Bank allegations.

The government intends to call several FBI agents assigned to the probe to testify, along with Baker and Bill Priestap, former head of counterintelligence for the FBI. Prosecutors have said they may seek testimony from Elias, who left Perkins Coie last year to start his own political law firm, and former Clinton campaign manager Robby Mook.

Durham’s case was bolstered in the weeks before trial when prosecutions revealed in a pretrial motion that Sussmann had sent a text message to Baker the night before the meeting saying he was “coming on my own—not on behalf of a client or company.”

Legal experts have previously said the government’s case faces serious evidentiary issues. The meeting between Sussmann and Baker took place more than five years ago. It was not recorded, there are no first-hand notes, and there are no other witnesses. Additionally, Baker initially told the House Intelligence Committee that he “could not recall” what Sussmann said about his client representations during the meeting.

Sussmann’s lawyers have indicated they won’t contest that Sussmann had attorney-client relationships with both Joffe and the Clinton campaign related to the Alfa Bank allegations. The defense hasn’t said whether it plans to dispute the central allegation that Sussmann claimed not to be representing a client during the meeting.

Much of their argument is likely to focus on materiality, that Sussmann’s client relationships could not have influenced how the FBI conducted its investigation. Prosecutors argue that knowing who Sussmann represented might have caused the FBI to take more incremental steps in their investigation or ask more follow-up questions about the source of the underlying data.

Sussmann’s lawyers say his connection with the Democratic Party was well known at the FBI and, regardless of the source of the information, the FBI would have been duty-bound to investigate it.

The defense has pointed to a March 2017 briefing about the Russia investigation during which senior FBI officials told top officials at the Justice Department that the Alfa Bank allegations came to the bureau from a lawyer “on behalf of his client,” according to notes from participants at the meeting.

“At some point between September 18, 2016 and March 6, 2017, the FBI apparently came to believe that Mr. Sussmann did have a client in connection with his meeting with Mr. Baker,” Sussmann’s lawyers wrote in a court filing on Sunday. 

The defense plans to call its own witnesses from the FBI and DOJ, including Mary McCord, the former acting head of DOJ’s national security division who was present for the March 2017 meeting. It’s unclear whether Sussmann will take the stand himself.

The defense will likely lose out on one of their core witnesses, Joffe, who informed Sussmann’s lawyers he will invoke his Fifth Amendment right against self-incrimination. Durham’s team previously told Joffe’s lawyer that he still faces potential criminal exposure from the special counsel’s investigation.

The defense objected to the government’s position, arguing that Joffe did not realistically face criminal exposure, and sought to force prosecutors to immunize Joffe, but the judge denied that request.

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