Michael Sussmann, a former lawyer for Hillary Clinton’s 2016 campaign, is set to go on trial Monday for a single charge of lying to the FBI, as part of Special Counsel John Durham’s three-year investigation of the Trump-Russia investigation.
But the trial is shaping up to be about something much bigger than whether Sussmann lied about his clients while passing on a tip to the FBI alleging suspicious ties between former President Donald Trump and Russia.
Durham’s prosecution team, in court documents and pre-trial hearings, has pursued a strategy of casting Sussmann’s actions as part of a dirty smear campaign to use political opposition research to spur an FBI investigation and to use the resulting press coverage against Trump and his campaign.
The former President has long claimed the FBI probe into his 2016 campaign was the “crime of the century,” and pointed the finger at Clinton and an assortment of “deep state” government officials for orchestrating it. Under Trump in 2019, then-Attorney General William Barr appointed Durham to examine what Barr characterized as an unfair investigation of Trump.
During the 2020 campaign, Trump called Durham’s investigation “one of the most important investigations in the history of our country” and publicly pushed for an October surprise – prosecutions of his political enemies in time for the election.
Durham hasn’t delivered on either.
The special counsel hasn’t alleged Clinton and her campaign broke any laws, and he hasn’t brought any conspiracy charges to tie Clinton and her campaign to Sussmann’s alleged crime.
A jury was seated Monday with, after an all-day selection process that touched heavily on the 2016 election and how jurors felt about Trump and Clinton. Sussmann’s trial will be the first opportunity for Durham’s team to litigate some of the hotly debated questions that have hung over US politics since soon after Trump descended an escalator in New York to declare his candidacy for president.
Was the cloud of alleged Russia ties a legitimate subject for a national security investigation – as has been established by multiple government investigations – or a political hit job, as Trump has claimed?
Special Counsel Robert Mueller spent two years investigating and produced a report detailing the Trump campaign’s myriad ties to Russia. As part of the Mueller probe, multiple Trump associates were convicted of lying to the FBI and other more serious crimes, but Mueller never charged anyone with conspiring with the Russians.
“This is very different than the vast majority of cases in that courthouse that deal with wire fraud, violent crime, gun violations,” said Veronica Renzi, a partner at the law firm Foley Hoag who specializes in white-collar criminal defense. “It’s different in terms of how it ties into US politics.”
Jury seated and sworn in
The jury was seated and sworn in Monday, with 12 jurors and four alternates, though the judge didn’t indicate which members were the alternates. The overall panel contains eight White women, three Black women, two White men, two Black men, and one Asian man.
At least three jurors indicated during the public selection process that they strongly preferred Clinton over Trump in the 2016 campaign, or previously donated to Democratic candidates. As is common in trials in the nation’s capital, some jurors work at federal agencies, including the Treasury Department and the Library of Congress. Other jurors include at least two lawyers, a former gymnast and a mechanic.
“The 2016 election was kind of a mess, and there were a lot of shenanigans happening,” one juror said during the voir dire process, where prosecutors and defense attorneys pepper jurors with questions about potential bias.
Durham was in court throughout the jury proceedings on Monday, sitting near his prosecutors, who occasionally looked back at him during key moments. This notable show-of-force was Durham’s first courtroom appearance during his investigation.
During the selection process, prosecutors asked some potential jurors about their past political contributions, and some indicated that they donated to Clinton’s campaign in 2016. While not a major issue overall, prosecutors tried to disqualify at least two of these jurors, and one was removed after she said she wasn’t sure if she could be impartial.
“This case certainly has political overtones,” Judge Christopher Cooper said. “But Hillary Clinton is not on trial here. Donald Trump is not on trial here. Mr. Sussmann is on trial.”
He later added, “We’re not here to relitigate the 2016 election.”
It’s about more than a lie
Sussmann is charged with lying during a September 2016 meeting with then-FBI General Counsel James Baker during which Sussmann shared information about possible computer server connections between the Trump Organization and Russia-based Alfa Bank. Sussmann pleaded not guilty.
Durham alleges that Sussmann, a well-known lawyer for Democrats and the Clinton campaign, told Baker he wasn’t working on behalf of any client. Prosecutors allege that during the meeting, Sussmann hid the fact that he was representing the Clinton campaign as well as a tech industry client to provide the server data, according to the indictment.
Prosecutor Andrew DeFilippis told the court last week that in painting a narrative to prove the case against Sussmann, he plans to rely on Clinton campaign press releases and tweets, as well as testimony from her campaign manager, as evidence.
That firm tasked former British spy Christopher Steele to produce a series of reports alleging compromising ties between Trump and Russia. The FBI used allegations from the infamous Steele dossier, which contained unverified and salacious allegations about Trump, to support an eavesdropping warrant against a former Trump campaign adviser in fall 2016 and early 2017.
The Steele dossier, which prosecutors plan to bring up at trial, did not mention the Alfa Bank tip that Sussmann brought to the FBI, though he met Steele once during the 2016 campaign. At the heart of all this opposition research was a coordinated effort by the Clinton camp to use the FBI and the media to hurt Trump, prosecutors allege.
“The strategy… was to create news stories about this issue, about the Alfa Bank issue,” DeFilippis said in court last week. “Second, it was to get law enforcement to investigate it, and perhaps third, to get the press to report on the fact that law enforcement was investigating it.”
The FBI looked into Sussmann’s tip, of a potential server backchannel between the Trump Organization and Alfa Bank, and concluded that it couldn’t find any illegal cyber links.
Durham’s star witness is Baker, who was the FBI’s top lawyer in 2016 when he met with Sussmann about the Trump-Alfa tip. Sussmann’s alleged crime stems from that meeting and whether he told Baker he wasn’t representing any clients – and was only there to help the FBI.
Over the years, Baker has given varying answers to this question, and may not have a clear recollection. Baker also has publicly defended the origins of the FBI’s Russia probe, making him an awkward witness for Durham, who has pushed the idea that the investigation was improper.
Prosecutors are armed with a text Sussmann sent to Baker one day before their meeting, where he allegedly wrote, “I’m coming on my own – not on behalf of a client or company.” This is not charged as a false statement, but Durham’s team says it shows Sussmann’s guilt.
“The text is strong circumstantial evidence,” said Renzi, the criminal defense attorney. “Texts that people write, assuming they can be authenticated, are very powerful because they show someone’s state of mind and can be directly attributed to them.”
Prosecutors also plan to put former Clinton campaign manager Robby Mook on the stand, and an ex-staffer from Fusion GPS. They’ll likely be asked about how the Clinton campaign worked with its attorneys and outside researchers to try to dig up dirt about Trump’s ties to Russia, and how that material was peddled to reporters and to federal investigators.
Sussmann’s defense has highlighted internal notes from a March 2017 meeting of top Justice Department and FBI officials, in which one official allegedly said Sussmann had been representing a client or clients. The handwritten notes, turned over by Durham in recent weeks, appear to undercut prosecutors’ central thesis that Sussmann was concealing his clients.
By the time of that March 2017 meeting, Sussmann’s work as a cybersecurity lawyer for the Democrats and Clinton’s campaign was well-known to the FBI, which had been investigating the Russian hack of Democratic National Committee servers and the dumping of internal Clinton campaign emails to undermine her campaign.
For his defense, Sussmann also plans to call witnesses from the FBI and Justice Department, including Justice Department Inspector General Michael Horowitz and Mary McCord, who was part of the DOJ’s early oversight of the Russia probe.
In his role as the Justice Department watchdog, Horowitz reviewed the origins of the Russia probe and concluded in a sweeping 2019 report that the inquiry was legitimately opened and wasn’t motivated by anti-Trump bias. He did find multiple serious errors in the FBI’s handling of surveillance orders.
In an unusual move, Durham issued a public response saying he disagreed with Horowitz’s findings, without specifying why early in his investigation he already had made conclusions.
Former law enforcement officials on the stand are likely to downplay the significance of Sussmann’s affiliation to the Democrats, teeing up an argument for the jury that no matter Sussmann’s political ties, his tip to the FBI was worthy of investigation.
The defense also plans to call journalist Eric Lichtblau, at the time a reporter for The New York Times. He was working on an article about the Trump-Alfa data before Sussmann gave a heads-up to the FBI, which then quashed the story. (Lichtblau worked for CNN in 2017.) Sussmann’s lawyers say this bolsters his claim that he didn’t go to the FBI on Clinton’s behalf, because her campaign wanted the story to be published.
Sussmann’s attorneys also said they expect testimony from character witnesses who can tell the jury about his career as a respected cybersecurity lawyer who routinely helped the FBI.
Pre-trial rulings set the stage
Federal Judge Christopher “Casey” Cooper issued a flurry of rulings in the last few weeks, setting some guardrails for the trial. As is common in criminal cases, the prosecutors and defense attorneys clashed over which evidence would be admissible and what type of arguments could be made.
In a blow to Durham, Cooper ruled that prosecutors can’t tell jurors that Sussmann was part of a “joint venture” with Democratic operatives and private investigators to smear Trump.
The judge, however, is considering allowing Durham to use some evidence of the campaign press strategy and Clinton’s tweets to support prosecutors’ claim that Sussmann lied to cover up that he was motivated by politics in order to dupe the FBI into treating his tips more seriously than they otherwise would have.
The judge also said Durham can’t try to convince the jury that there was anything illegal or “objectionable” about the efforts by cyber researchers to collect data about Trump’s connections to Alfa Bank.
These rulings could restrict how much Durham is allowed to use the trial to litigate the 2016 campaign.
Cooper, who was appointed by former President Barack Obama and confirmed unanimously by the Senate in 2014, also went against Sussmann in some key rulings. He decided in April that the case was strong enough to proceed to trial.
And he rejected Sussmann’s request to immunize a key defense witness who said they can’t testify because they’re still under investigation by Durham. As a result of the ruling and Durham’s ongoing probe, that witness is not expected to testify, and would plead the Fifth if he ends up on the stand.
Durham investigation continues
Durham will get another chance to litigate the Steele Dossier with the upcoming trial later this year of Igor Danchenko, who was a key source for Steele’s research and is charged with lying to the FBI about who he worked with on the project. Danchenko has pleaded not guilty.
During the Trump administration, Durham enjoyed an unusually close relationship with Barr, the attorney general. Barr traveled with Durham to Europe, trying to persuade US allies to provide intelligence assistance to Durham’s probe, with varying success. Durham was seen coming and going from the Justice Department, where he personally briefed Barr.
Near the end of the administration, Barr formally made Durham a special counsel, making it harder politically for the incoming Biden administration to interfere with Durham’s work.
Unlike the Trump-era Justice Department, which made clear that special counsel Mueller regularly briefed senior leaders on his investigation, the current officials under Attorney General Merrick Garland have largely avoided publicly discussing any oversight of Durham.
In court recently, Durham’s prosecutors also have said they continue to investigate others and that more charges may come.
Renzi, the white-collar defense attorney and a former federal prosecutor, said, “there is a cost to these kinds of trials,” referring to the Sussmann case.
“An analysis should be done to make sure the cost is worth it to the Justice Department and to the American people,” Renzi said. “And if there is an acquittal, it would raise questions, as a practical matter, about the length and depth of the (Durham) probe.”