WASHINGTON (CN) — “Let’s do some exploring of memory,” a defense attorney announced to a federal jury in Washington before probing former top FBI attorney James Baker about his 2016 meeting with Democrat-linked lawyer Michael Sussmann.
The meeting is what prompted Special Counsel John Durham to look into the FBI’s handling of a 2016 probe into Trump-Russia collusion, which led to Sussmann’s indictment last September for allegedly falsely stating that he was not representing any clients when he met with Baker in 2016 and provided him with data files supposedly containing evidence of secret communications between Russia’s Alfa Bank and then-presidential candidate Donald Trump.
After Baker faced two days of questioning from prosecutors this week, the government’s star witness was quizzed again Thursday on his recollection of statements he made to Special Counsel John Durham’s team during interviews regarding the case.
Berkowitz began by asking Baker if it was true that the fact that Sussmann texted that he had some sensitive information to share — “acting on his own and not for a client” — had no impact on the decision on whether to meet him on Sept. 19, 2016.
“I disagree with that,” Baker said.
Berkowitz then asked if Baker recalls an interview, about two months ago, in which he told prosecutors the opposite: that Sussmann’s no client comment did not have an impact on his decision.
“Sitting here today, I don’t recall telling them that,” Baker said.
After reading the transcript from the March interview, Baker said he had “not seen that 302” before, which is an FBI term for a report.
Berkowitz then questioned whether Baker, who was the top attorney for the FBI at the time, created a 302 for his 2016 one-on-one meeting with Sussmann.
Baker said he did not and was then asked if seeing the 302 from the March interview helped to refresh his recollection of what he said then and if it is still accurate.
“It’s my testimony today, that as I think about it today, that that’s not accurate,” Baker said.
Berkowitz continued similar lines of questioning throughout the hearing, highlighting Baker’s conflicting statements in his testimony to Congress, the Justice Department Office of the Inspector General, Durham’s team and on the witness stand this week.
He also tried to poke holes in one of the government’s main arguments: that Baker did not know, at the time of the 2016 meeting, that Sussmann had been working as an attorney at Perkins Coie representing the Clinton campaign and the Democratic National Committee in connection with the DNC-Russia computer servers’ hack.
Calling it the “elephant in the room,” Berkowitz questioned Baker if he knew Sussmann was representing the campaign and the DNC during their 2016 meeting.
“Sitting here today, I think the answer is yes, I did know that by that point in time,” Baker said.
But the defense attorney brought up Baker’s conflicting comments to prosecutors two years ago, in June 2020, in which he said he did not know that Sussmann was representing those clients at the time of the meeting — “so the opposite of what you said today.”
“Over time, I have had a hard time placing exactly when it was that I learned that information,” Baker said.
But “sitting here today,” he said, based on a colleague's notes from a meeting about the matter — “it tells me that I must have learned that before the  meeting.”
At the end of the hearing, Berkowitz asked if Durham’s team ever threatened Baker based on that fact that he was told.
“Mr. Durham and his team have never threatened me in any way,” Baker said.
“But you knew you could be prosecuted if perjured?” Berkowitz asked.
“Yes,” Baker said.
On Wednesday night, Sussmann’s defense team moved for a mistrial, but U.S. District Judge Christopher Cooper denied the motion on Thursday morning.
The Obama-appointed judge also denied the government’s motion to dismiss a juror who is on the same rowing team as Sussmann’s daughter. In announcing his decision, Cooper noted that the juror said there are more than 40 people on the team and that she felt she could be fair because she does not know his daughter.
Sussmann has pleaded not guilty to a single charge of making a false statement to the FBI. His attorneys asked U.S. District Judge Christopher Cooper to dismiss the case in March, but he allowed it to proceed to trial.
Sussmann resigned from his position at law firm Perkins Coie after being indicted last September. If convicted, he faces up to five years behind bars.
The defense is set to resume cross examination of Baker on Friday.Follow @EmilyZantowNews
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.