Perkins Coie Partner Indicted Because He Forgot To Bill To 'Professional Reading'

Inconsequential billing code issue turned into smoking gun.

Now-former Perkins Coie partner Michael Sussmann was indicted yesterday, becoming the sole casualty (so far!) of Special Counsel John Durham’s much-ballyhooed witch hunt to get to the bottom of who tipped off the federal government about all that shadiness involving Trump and Russia. If it seems weird to launch a criminal investigation into the people who uncovered criminal activity, you have to remember that the Mueller Report exoneratedTM Donald Trump when it concluded that he obstructed justice but that it was beyond the power of the Special Counsel to bring charges against a president. An inverse, “no foul, no harm” thing.

Trump pinned a lot of his hopes on Durham rolling in with an indictment to “lock her up” in the waning days of the campaign and grew increasingly outraged that his bumbling Javert couldn’t find a whiff of significant illegality. But now they’ve finally found their culprit! A lawyer who maybe, kind of, might have worked with the Clinton campaign told the FBI about a cybersecurity issue and didn’t say he was doing so on behalf of the campaign.

Oh.

Yes, the charge of lying to the FBI’s general counsel is predicated upon a Perkins Coie attorney — the firm that everyone in the world knew to be the Clinton campaign firm — handing over evidence without clarifying that his firm worked with the campaign. From the rest of the allegations, it appears that Sussmann was not in fact representing the Clinton campaign when he took this information to the FBI, but rather “Tech Executive-1,” who brought the information to Sussmann’s attention. Sussmann ultimately informed the campaign of the information, but seems to at all times be either representing this executive or just generally acting as an officer of the court reporting a credible tip of potential criminality to the FBI.

How do prosecutors jump from there to tagging Sussmann as an agent of the campaign? Here’s where the billing diaries matter:

For example, on or about July 29, 2016, SUSSMANN and Campaign Lawyer-I met with personnel from the U.S. Investigative Firm in Campaign Lawyer-I’s office. SUSSMANN billed his time in this meeting to the Clinton Campaign under the category “General Political Advice” with the billing description “meeting with [Campaign Lawyer-II, others regarding [ ] confidential project.” (For all of SUSSMANN’s other billing entries cited herein that he billed to the Clinton Campaign, he similarly billed his time to the campaign under the category “General Political Advice”).

There’s the smoking gun! Or slightly singed popgun anyway.

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Maybe this was really work for the campaign, but reading this cold, my takeaway is that Sussmann couldn’t figure out where to put his time for this, felt guilty about the idea of billing anyone for general do-goodery, and parked it on the campaign because — and this is a critical fact here — the campaign was on a flat retainer so time billed to that client was meaningless. So now, Sussmann’s whole indictment may hinge on him tagging this work under the campaign billing number instead of billing the tech executive or — probably more accurately — parking it as “personal work” or some other non-billable code because it seems from this account that his meetings with campaign officials about non-campaign business don’t really belong in that account.

Because if you think the campaign’s stance was “we order you to take that to the FBI, but don’t tell them we said so” as opposed to, “that appears to be a serious allegation and you should bring it to the proper authorities if you have reason to believe it’s credible,” then you’ve never ever spoken with a lawyer ever. It was almost certainly the latter scenario and under that scenario he would be absolutely correct to say he wasn’t turning information over on behalf of any specific client.

Regardless, assuming arguendo that Sussmann was on marching orders from the campaign when he took this tip to the FBI, Lady Godiva wore more materiality than this indictment.

In the days following SUSSMANN’s meeting with the FBI General Counsel, and as a result of that meeting, the FBI opened an investigation of the Russian Bank-I allegations. SUSSMANN’s false statement to the FBI General Counsel was material to that investigation because, among other reasons, it was relevant to the FBI whether the conveyor of these allegations (SUSSMANN) was providing them as an ordinary citizen merely passing along information, or whether he was instead doing so as a paid advocate for clients with a political or business agenda. Had SUSSMANN truthfully disclosed that he was representing specific clients, it might have prompted the FBI General Counsel to ask SUSSMANN for the identity of such clients, which, in turn, might have prompted further questions. In addition, absent SUSSMANN’s false statement, the FBI might have taken additional or more incremental steps before opening and/or closing an investigation. The FBI also might have allocated its resources differently, or more efficiently, and uncovered more complete information about the reliability and provenance of the purported data at issue.

I’m offended on behalf of the FBI. The indictment’s stance is that the FBI are Keystone Kops unable to piece together basic information that, again, they were handed by a lawyer that they knew worked for the campaign’s outside counsel. Grand juries will indict a ham sandwich, but this one stretches even that maxim. When materiality allegations hinge on repeated use of the phrase “might have” it doesn’t inspire confidence in the prosecution’s chances.

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And that’s before we get to the point, raised by our colleague Liz Dye, that congressional inquiry into this issue has already gotten the FBI general counsel on record verifying that, even if this statement was false, it had no material bearing on the investigation:

DEM HOUSE LAWYER: So regardless of not being the most typical route for evidence besides the FBI, when the evidence is provided to you, does the FBI have a process to evaluate the credibility of the evidence, to vet it as it would any other piece of evidence coming to the FBI?

BAKER: Yes.

DEM HOUSE LAWYER: Okay. So whatever evidence was provided to you would have been evaluated by the same individuals the FBI as through whatever typical challenges the FBI gets its evidence?

BAKER: Yes. Yes.

Oof.

I guess Trump is going to have to return his faith to Mike Lindell and his magic attorneys general because John Durham is a flop.


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.