Fired FBI Deputy Director Andrew McCabe knew a Hillary Clinton campaign lawyer was acting on behalf of an unidentified client when he gave the feds information purporting to show a connection between former President Donald Trump and Russia, Justice Department notes suggest in a new court filing.
In a five-page order issued Friday ahead of jury selection, Washington, DC, Judge Christopher Cooper also said the lawyer, Michael Sussmann, may be allowed to use the notes for his defense at the trial set to start Monday.
And “if the defense believes in good faith that it will be able to lay a proper foundation for the notes, it is free to mention them in its opening statement,” Cooper ruled.
The notes were made by two top Justice Department officials about a March 2017 briefing of then-acting Attorney General Dana Boente on the FBI’s various Russia-related investigations, including the allegations that Sussmann brought to the bureau in September 2016.
Sussmann is charged with lying to the government by claiming he wasn’t “acting on behalf of any client” when he gave then-FBI general counsel James Baker since-debunked reports and data that purportedly revealed a secret back channel between a Trump Organization computer server and Russia’s Alfa Bank.
Special counsel John Durham alleges that Sussmann was actually working on behalf of both Clinton’s campaign and Rodney Joffe, a tech executive who alerted him to the data.
Evidence compiled by Durham includes notes that allegedly back up the charge against Sussman and were made by two FBI officials, Bill Priestap and Trisha Anderson, about a meeting with Baker shortly after his sit-down with Sussmann.
But the notes made by Mary McCord and Tahsina Gauhar about the March 6, 2017, briefing “suggest that Mr. McCabe advised the group that the Alfa Bank allegations were shared with the FBI by an ‘attorney…on behalf of his client,’ or by an attorney who had a client, but ‘d(id)/n(ot) say who (the) client was,’” Cooper wrote.
Sussman’s lawyers have also said that more than 300 FBI email chains they reviewed show the feds knew he worked for Democratic campaigns, according to the Washington Post.
Cooper said McCord and Gauhar’s notes about McCabe’s remarks “present a hearsay problem,” in part because “Mr. McCabe is not on either party’s witness list, and, apparently, neither of the notetakers (who are expected to testify) clearly remember him making the statement at the meeting.”
But he said their notes could potentially be used in court if they meet certain criteria, including having been “made contemporaneously with the conversation and not after the fact.”
A final decision on the notes’ admissibility won’t be made “until trial,” said the judge, who was nominated by former President Barack Obama.
McCabe — a frequent target of criticism by former President Donald Trump — was fired in March 2018 following a probe that found he “made an unauthorized disclosure to the news media and lacked candor — including under oath — on multiple occasions.”
The leak led to a 2016 Wall Street Journal story about an FBI investigation into Clinton and the Clinton Foundation, and McCabe — who denied being the source — was later revealed to have apologized to the agents who spent weeks trying to track down the leaker.
McCabe was fired two days before his 50th birthday, when he planned to return upon becoming eligible for a full pension.
In October, the DOJ agreed to grant McCabe the pension and about $200,000 in missed payments to help settle a suit in which he alleged his firing was politically motivated.
Meanwhile, a former New York Times reporter who’s on Sussmann’s witness list wants Cooper to prevent Durham’s team from cross-examining him on anything other than his communications with the embattled lawyer.
In a Thursday night court filing, lawyers for Eric Lichtblau said he’s worried that prosecutors may ask him about other reporting he did on Trump’s purported ties to Russia.
Durham obtained emails between Lichtblau and unidentified “third parties,” and the journalist’s lawyers said questions about them would violate his First Amendment right to protect his sources.
A previous ruling by Cooper should also block questions about the Lichtblau’s emails because it limited the evidence Durham can introduce about an “uncharged conspiracy” involving Sussmann, Clinton’s campaign and the Fusion GPS research company to publicize the Alfa Bank allegations.
Sussmann met with Lichtblau shortly before meeting with Baker, and Lichtblau co-authored a New York Times story titled, “Investigating Donald Trump, F.B.I Sees No Clear Link to Russia,” which was published eight days before the 2016 election.
Cooper has yet to rule on Lichtblau’s request.