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The first trial to emerge from Special Counsel John Durham’s probe finally got underway Tuesday – as prosecutors accused former Hillary Clinton lawyer Michael Sussmann of trying to engineer an ‘October surprise’ when he sought out a top FBI official to discuss an allegation about Trump and Russia.
The allegation didn’t pan out, but the meeting itself constituted an effort to ‘use and manipulate’ federal law enforcement for political ends, prosecutors argued.
Sussmann’s defense team argued he was forthright when he acted on his own to bring information to authorities, and said the intervention did not benefit the Clinton camp in any way.
It all comes years after the first media reports about was described as suspicious computer traffic between the Trump Organization and a Russian bank, at a time when Trump and his campaign were under scrutiny for Russia ties in the election.
Lawyer Michael Sussmann contacted FBI general counsel James Baker with a ‘tip’ of information about apparently unusual traffic between Trump Organization and a Russian bank. He is charged with lying to the FBI when he said he wasn’t working on behalf of a client
Sussmann is charged with lying to the FBI early in the Trump-Russia probe in the final weeks of the election. Defense lawyers told jurors he never lied.
Sussmann is accused of misleading the FBI during a September 2016 meeting by telling the bureau’s top lawyer that he wasn’t acting on behalf of any client when he presented computer data that he said might connect Russia to then-candidate Donald Trump. In reality, prosecutors say, he was acting on behalf of the Clinton campaign and another client who had provided him with the data.
Tech executive Rodney Joffe had told Sussmann of ‘communications between internet servers maintained for the Trump Organization and servers belonging to Russia’s Alfa Bank’ – information he would share with a law partner and the FBI.
Special counsel John Durham, the prosecutor appointed to investigate potential government wrongdoing in the early days of the Trump-Russia probe, is seen leaving federal court in Washington May 16, at the start of Sussmann’s trial. He is accused of misleading the FBI when he brought forward information, a charge he denies
Sussmann went to the FBI weeks before the 2016 elections. Prosecutors say he was trying to engineer an ‘October surprise’ in the campaign
Prosecutors, faced with a jury in Washington, D.C. that might have existing notions about Trump, Clinton, and Russia, described Sussmann as someone who abused his ‘privilege.’
‘This is a case about privilege … the privilege of a lawyer who thought that for the powerful the normal rules didn’t apply, that he could use the FBI as a political tool,’ Assistant Special Counsel Deborah Shaw told jurors in the case.
‘The defendant lied to direct the power and resources of the FBI to his own ends and to serve the agendas of his clients.
He lied, prosecutors told the jury, in hopes of generating an ‘October surprise’ of FBI investigations into Trump and negative news coverage of him, and because he knew the FBI would consider the information less credible if it thought it was being presented on behalf of the Clinton campaign.
‘He told a lie that was designed to achieve a political end, a lie that was designed to inject the FBI into a presidential election,’ said prosecutor Brittain Shaw.
Former FBI general counsel James Baker
But Sussmann’s lawyers sought to counter each of the prosecution’s allegations, presenting him as a well-respected attorney with deep experience in law enforcement intelligence matters who never lied to the FBI and never would. The fact that he represented Democratic clients was well-known to the FBI and not anything he intended to hide.
‘He was someone the FBI knew represented partisan clients,’ defense lawyer Michael Bosworth said in his opening statement. ‘The FBI knew that he represented the Clinton campaign that summer. The FBI knew that he was an attorney for the DNC, the Democratic Party itself.
In any event, Bosworth said, it would be impossible for prosecutors to prove that Sussmann had lied because only he and the FBI lawyer he met with, James Baker, were present and neither took notes. Five and a half years after the meeting, Baker’s memory of what was said is ‘clear as mud,’ Bosworth said.
Sussmann’s trial is the first arising from special counsel John Durham´s investigation into the FBI´s original probe into Russian election interference and potential ties with the Trump campaign. Though Durham was thought to be focused at least initially on misconduct by government officials during the course of the Russia investigation, the Sussmann case alleges wrongdoing by a tipster to the FBI rather than the FBI itself.
Durham was appointed by former Donald Trump Attorney General Bill Barr.
In an early recognition of the politically loaded nature of the case, Shaw urged jurors to put aside any feelings they might have about Trump, Russia or Clinton.
‘Some people have very strong feelings about politics and Russia, and many people have strong feelings about Donald Trump and Russia. But we are not here because these allegations involved either of them, nor are we here because the client was the Hillary Clinton campaign,’ Shaw said.
Rather, she added, ‘We are here because the FBI is our institution. It should not be used as a political tool.’
At issue is a Sept. 19, 2016 meeting in which Sussmann presented Baker, the FBI’s then general counsel, with computer data gathered by another of his clients that purported to show furtive contact between computer servers of the Trump Organization and Russia-based Alfa Bank.
That connection, if true, would have been explosive at a time when the FBI was examining whether the Trump campaign and Russia were conspiring to sway the election.
The FBI did investigate the data but found nothing nefarious, and the communication instead reflected what Shaw described as a ‘spam email server’ used to send out marketing.
‘The server did not reflect a crime,’ Shaw told jurors, ‘nor was it a threat to national security.’
Bosworth said he took the computer data seriously because it appeared to show ‘weird contacts’ between Trump’s business organization and Russia and because it was given to him by Rodney Joffe, a client who Bosworth said was such a respected technology executive that the FBI had asked him to be an informant.
He said Sussmann had sought out the meeting to give Baker a heads-up that a story about the computer data might be published imminently by The New York Times. Shaw, the prosecutor, had a different take, saying Sussmann had grown frustrated that a reporter he’d been working with had not yet written about the data and wanted to prompt investigations by the FBI that could ensure news media coverage.
But after the meeting, the FBI asked the newspaper to delay publication. That’s the opposite of what the Clinton campaign would have wanted, Bosworth said, suggesting that he wasn’t acting on the campaign’s behalf when he scheduled the meeting.
“The meeting with the FBI was the exact opposite of what the Clinton campaign would have wanted,” Bosworth said.
‘The FBI meeting was something that they didn´t authorize, that they didn´t direct him to do, and that they wouldn´t have wanted,’ Bosworth continued.
Durham was appointed in 2019 by then-Attorney General William Barr to look for any misconduct as the U.S. government was examining potential coordination between Russia and the 2016 Trump campaign. An investigation by an earlier special counsel, Robert Mueller, did not find a criminal conspiracy between Russia and the Trump campaign though it did find that Russia sought to aid Trump’s election bid.
The Alfa Bank matter was a peripheral part of the FBI´s investigation and the allegations of potentially secretive contact were not even mentioned in Mueller’s 2019 report.
Durham’s work has resulted in three cases. Only the one against Sussmann has reached trial.
In 2020, a former FBI lawyer named Kevin Clinesmith pleaded guilty to altering an email related to FBI surveillance of an ex-Trump campaign adviser, Carter Page. In applying for warrants to eavesdrop on Page, the FBI relied on research files of anti-Trump information known colloquially as the ‘Steele dossier’ that contained rumors and uncorroborated claims.
Last year, Durham charged a Russia analyst who was a source for that dossier with lying to the FBI about his own sources of information – among them, a longtime Hillary Clinton supporter. Igor Danchenko has pleaded not guilty.