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https://www.lawfareblog.com/sussmann-indictment-human-source-handling-and-fbis-declining-fisa-numbers
Late in the evening of Oct. 6, attorneys for former Department of Justice attorney and former Perkins Coie partner Michael Sussmann filed a motion for a bill of particulars relating to his indictment by Special Counsel John Durham. The indictment charges Sussmann with one count of making a false statement to the FBI in September 2016, in conjunction with providing allegations that computer systems connected to the Russian Alfa Bank had anomalous contact with an internet domain associated with the Trump Organization.
[Full disclosure, I had a minor role in the events in question, insofar as I transferred the material Sussmann gave to Jim Baker, the FBI’s general counsel at the time, to the personnel who ultimately supervised and looked into the allegations.]
At the time Sussmann’s indictment was returned, by coincidence I was taking a look at data from the Office of the Director of National Intelligence’s (ODNI’s) Annual Statistical Transparency Report and noticed a precipitous drop in the volume of the intelligence community’s use of complex investigative techniques, such as those authorized by the Foreign Intelligence Surveillance Act (FISA). I believe these two issues are connected.
What, you may ask, do Sussmann’s indictment and the declining number of FISA orders have to do with each other? Far more than you might think.
The Oct. 6 motion filed by Sussmann’s attorneys lays out his claim that the indictment failed to state the charges against him with sufficient specificity to allow him to effectively defend himself, and it asks the judge hearing the case to direct the government to provide additional detail about the crime Sussmann is alleged to have committed.
While I share many of the concerns about the indictment laid out by Benjamin Wittes in a September Lawfare post, what caught my eye in Sussmann’s motion has relatively little to do with its merits. Sussmann’s lawyers write:
Without prejudice to any other pretrial motions Mr. Sussmann may bring on the matter, Mr. Sussmann is also entitled to additional particulars regarding the alleged omissions in the indictment, including regarding the legal duty, if any, that required him to disclose the allegedly omitted information the Indictment suggests he should have disclosed.
This paragraph of the motion is a response to Durham’s allegation that Sussmann
concealed and failed to disclose, (i) SUSSMANN had spent time drafting one of the white papers he provided to the FBI General Counsel and billed that time to the Clinton Campaign, and (ii) the U.S. Investigative Firm—which at the time was also acting as a paid agent of the Clinton Campaign—had drafted another of those white papers.
This idea points to a significant issue: omitting information is both frequent and problematic when dealing with human sources of information in federal investigations. By its terms, 18 U.S.C. § 1001 makes it a crime to “falsif[y], conceal[], or cover[] up by any trick, scheme, or device a material fact.” Does that mean that any material omission by any human source in any federal investigation is a crime?
I spent more than 20 years in the FBI, handling—and then supervising the handling of—hundreds, if not thousands, of human sources. Within that universe, I can count on one hand the number of times in my career in which I thought a source was telling me the whole, unvarnished truth, let alone relaying to me his or her complete and honest accounting of the source’s motivations in talking to me. In fact, the two agencies that do the bulk of the nation’s national security human source recruitment and handling, the CIA and the FBI, devote enormous time in training and operations to understanding and rigorously characterizing the unique and limited certainty that every human source brings to the table. ..