A future ex-lawyer named Michael Sussmann is going to trial next week for his role in feeding the FBI bogus Russian collusion stories.

Those stories are scurrilous and vulgar lies which distracted the nation and the Trump administration for years and for which someone should be held accountable. But Sussmann was not the person who manufactured those lies. He was just the bag man who passed them on to the FBI.

And so those lies are not what Sussmann has been charged with. He’s been charged with a more pedestrian lie – the lie of telling the FBI he was not working for a client when in fact he was. Not just any client, but the Democratic National Committee and Hillary Clinton’s campaign.

He’s guilty as hell.

But in a broader sense, this bag man is just a fall guy. The FBI surely knew all along that he, his partner Marc Elias and their firm Perkins Coie, a Seattle law firm with aspirations, were Democrat operatives. Everyone knew that. 

So, if the FBI knew all along that Sussmann was lying, why did they generate numerous written records – in the form of otherwise irrelevant notes of the lie and Sussmann’s own text message (which may be something the FBI requested for this very purpose) – that he was not working for a client?

Here’s why. The FBI intended to, and did, present Sussmann’s bogus story to the FISA courts in order to obtain authorization and re-authorization to conduct surveillance on the Trump campaign. They knew the story would stink to high heaven if they told the court that it came from Hillary’s lawyers. So I speculate that they invited those lawyers – Sussmann et al – to say they weren’t representing Hillary in connection with the story.

Query: Why was the FBI this desperate to conduct surveillance on the Trump campaign? Another query: Why haven’t the DNC and the Hillary campaign been charged with anything yet? I’ll leave those questions for another column.

Sussmann’s initial defense was that he never told the FBI what he told them. Forensic and testimonial evidence has sunk that defense – it was yet another lie – and so now he’s left with the defense that his lie doesn’t matter – it was “immaterial.”

As for his lie to the court in his initial defense that he didn’t lie to the FBI, well, lawyers don’t call lies to the court perjury or obstruction of justice; they call them “pleading in the alternative.”

In essence, Sussmann is admitting that he lied to the FBI and lied to the court about lying to the FBI, but now he’s telling the truth that it was the FBI that essentially invited him to lie and to lie about lying.

For once, I think Sussmann is (finally) telling the truth. 

And in a technical legal sense, Sussmann is on plausibly firmer ground here. Not because the fact he was working for the DNC and Hillary was immaterial – that fact was very material because that fact would have undermined his story with the FISA court – but because the FBI knew that when he told them he was not, he was lying.

There’s some logic to that. No one relies on a lie if they know it’s a lie, so it can’t be a material one. No harm, no foul.

On the other hand, the FBI itself, and judges, too, interpret the law to mean that lying to investigators about a material fact is a crime even when the investigators know it’s a lie. Witness the plight of Michael Flynn who was prosecuted for allegedly telling the FBI something they knew was not true. (I say allegedly, since the FBI agents made no recording, and their later position contradicted their contemporaneous notes.)

In any event, not everyone knew that Sussmann was lying. Maybe I’m just being optimistic, but I hope and assume the FISA judge, as the ultimate recipient of this lie, didn’t know it was a lie when he relied upon it in granting the FBI a warrant for surveillance.

If my speculation is right, then who’s the bigger crook? Is it Sussmann for accepting the FBI’s implicit (or explicit) invitation to lie, or is it the FBI for inviting him to lie, recognizing that he’d lied, and then presenting the lie as fact to the FISA court to illegally get a surveillance warrant on a presidential campaign?

Sussmann deserves to be convicted. That said, we expect political operatives like him to lie to everyone all the time. We don’t, however, expect the FBI to lie to the courts, ever, and certainly not for the purpose of spying on political campaigns. I hope Durham is just getting warmed up.

Glenn K. Beaton practiced law in the Federal Courts, including the Supreme Court.

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