Sussmann is charged with lying to the FBI during the heated final days of the 2016 presidential campaign. By the special counsel’s account, he hid whom he was working for when he approached a senior FBI official with evidence of a possible computer link between then-candidate Donald Trump’s company and a Russian bank. Though Sussmann denied he made the approach on behalf of a client, Durham alleged, he actually did so for two: a tech executive and Hillary Clinton’s campaign.
Sussmann has denied the charge, and accused Durham of prosecutorial overreach in pursuing what he calls a faulty, politically charged case. In response to a court filing by Durham last month, Sussmann’s legal team accused the prosecutor’s office of using a pedestrian pretrial legal question about potential conflicts of interest to make misleading assertions. Trump and his allies immediately seized on those assertions to accuse Democrats and former officials of misconduct and “spying.”
At Thursday’s hearing, Cooper said he didn’t understand why Durham’s team included those details in the filing, but assumed the decision was made in good faith, noting “much, if not all, of the challenged material is likely to come out anyway” before or at trial.
Sussmann’s lawyer had asked the court to strike from the record those parts of Durham’s filing. The judge declined to do so, though he also cautioned prosecutor Andrew DeFilippis that he should be careful going forward about what he includes in court papers.
“Striking it will not unring the bell and will probably make the bell even louder,” Cooper said. “Keep in mind,” he told DeFilippis, “that the pleadings in this case are under a microscope. … Be mindful of that as we go forward.”
“Fully understood, your honor,” DeFilippis answered.
Sussmann’s attorneys have asked Cooper to toss out the entire case, arguing that even if Sussman did what Durham alleged, it doesn’t amount to a crime. The case against Sussmann, they argued, could have a chilling effect, discouraging other tipsters from telling the FBI about potential crimes. Durham’s team said the FBI might have acted differently had they known the true reason for Sussmann’s approach; Sussmann, they said, was far from an average tipster. Durham’s team called him “a sophisticated and well-connected lawyer” who “chose to bring politically charged allegations to the FBI’s chief legal officer at the height of an election season.”
The latest political furor surrounding the Sussmann case began when prosecutors raised an ostensibly innocuous issue — asking Judge Cooper to inquire about possible conflicts of interest involving Sussmann’s legal team. But Durham included in it some new details about the computer ties that Sussmann and those working with him had analyzed between Trump-connected entities and those linked to Russia. The FBI investigated the purported links and found nothing nefarious.
The computer ties at issue came from the Domain Name System, or DNS, a sort of digital phone book which matches domain names — which are typically words — to Internet addresses, which are numbers. Durham notably alleged that a tech executive working with Sussmann had “exploited” DNS data from the executive’s company which maintained servers for the Executive Office of the President “as part of a sensitive arrangement whereby it provided” computer services to the EOP.
Trump claimed that the information in the filing proved that Democrats had spied on him while he was in the White House, a scandal he called “bigger than Watergate.” He suggested those involved should be executed and that “reparations should be paid to those in our country who have been damaged by this.”
The reality, though, was not as Trump led his supporters to believe. Sussmann’s team noted the DNS information, which Sussmann later passed to the CIA, “pertained only to the period of time before Mr. Trump took office, when Barack Obama was President.” That would seem to rebut the idea the researchers were maliciously gathering Trump’s data when he occupied the Oval Office, and passing it to Democrats. Lawyers for one of the researchers involved also disputed Durham’s account, and said the data being analyzed was from before Trump took office.
As part of Thursday’s hearing, Cooper said he thought that some of the potential conflict questions raised by Durham’s legal team were valid. Sussmann quickly waived any concerns on his part, saying he would keep his lawyers regardless.