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Sussmann trial to test credibility of controversial figures from 2016

The first trial resulting from Special Counsel John Durham’s probe will explore claims and counter-claims of Trump-Clinton race

Michael Sussmann, a former federal prosecutor with expertise in computer cases, in Washington on Sept. 17, 2021. (Amanda Andrade-Rhoades for The Washington Post)
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After five years of accusations, investigations and recriminations, a federal jury will soon grapple with one of the legal hangovers of the 2016 presidential campaign: the trial of a politically connected lawyer charged with lying when he brought the FBI a tip about possible connections between Donald Trump’s company and a Russian bank.

The trial of Michael Sussmann centers on the narrow legal question of whether he lied when he claimed — less than two months before the 2016 election — that no client had spurred him to bring the tip to authorities, and whether that information was relevant to how FBI agents investigated the matter.

But the case, which begins Monday in federal court in downtown Washington, may also serve as a kind of Rorschach test for those still smarting over the 2016 election and eager to see political opponents suffer legal consequences for what happened.

The charge was brought by special counsel John Durham, a holdover from the Trump administration who has spent years probing whether U.S. agencies unfairly investigated the former president’s first campaign. The two-week trial will delve into the murky world of campaign research, lawyers and the role the FBI played in that election, as Trump and Hillary Clinton vied for the presidency, and federal agents pursued very different investigations surrounding each of them.

“What this case is really about is opposition research. And that may look unseemly, but that’s the rough-and-tumble world of national political campaigns,” said Randall Eliason, a former federal prosecutor who now teaches at George Washington University Law School. “That doesn’t make it a criminal offense, and that’s the difference here. There’s a lot of sleazy stuff that goes on in the world that isn’t criminal, and I don’t see how these allegations rise to that level.”

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While much is at stake for Sussmann, a former Justice Department prosecutor who in 2016 worked at a white-shoe law firm that had long represented Democratic campaign organizations, the trial will also be a test of Durham’s credibility. He was appointed in 2019 to probe possible misconduct in the way U.S. agencies pursued allegations of Russian election interference and ties to the Trump campaign.

Trump and his supporters frequently say Durham’s work has revealed damning information about how the Republican standard-bearer was unfairly targeted by the Clinton campaign and the FBI, while Democrats accuse Durham of spending years chasing baseless accusations, only to bring a handful of weak cases.

The charge against Sussmann is the first Durham case to go to trial. A Washington-based researcher faces trial later this year for allegedly lying to the FBI about how he collected allegations against Trump. In 2020, a former FBI lawyer pleaded guilty to illegally changing a government record.

Robert Mintz, another former federal prosecutor, said the trial next week “will be the first real test” of Durham’s work. By going to trial, he said, Sussmann has “thrown down the gauntlet and challenged the significance of the prosecution and the wisdom of bringing the case.”

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On Sept. 19, 2016, Sussmann met with James Baker, who at the time was the FBI’s top lawyer, and told him about computer data suggesting some kind of communication between Trump’s company and Alfa Bank.

In a text message setting up the meeting, Sussmann claimed he was not representing any particular client in bringing the matter to the FBI’s attention. Durham’s office charges that claim was a lie — one that led the FBI to take the tip more seriously than it otherwise would have, had it known Sussmann was representing two clients: the Clinton campaign, and a tech firm executive involved in assembling and analyzing the data, Rodney Joffe. Prosecutors have said they intend to call Baker, as well as a number of current and former FBI officials, to discuss how agents investigated the allegation.

Within weeks of getting the tip, FBI officials determined there was nothing illegal or problematic about the data Sussmann had brought them. Those allegations of possible secret computer links between Trump and Russia did surface, however, in news reports shortly before the election. Generating such coverage was a key goal of those working with Sussmann, prosecutors say.

“The strategy,” Assistant U.S. Attorney Andrew DeFilippis said in court Monday, “was to create news stories … to get the government to investigate it … and to get the press to report the government was investigating.”

Prosecutors argue that Sussmann lied in furtherance of that strategy, and they say that lie amounts to a crime.

Sussmann’s lawyers counter that even if Sussmann lied, his lie was irrelevant to how the FBI investigated the data claims — and therefore was not criminal. They argue that many FBI officials had long known Sussmann was a lawyer representing Democrats.

To prove their point, they told U.S. District Judge Christopher Cooper there are 327 FBI emails from the period in question that, they say, show various FBI officials understood Sussmann had clients who were Democrats. The judge has signaled he is willing to allow some of that evidence but doesn’t want to spend the time it would take to read hundreds of emails to the jury.

Prosecutors signaled this week that they plan to call a host of current and former law enforcement officials to describe how the FBI pursued the Alfa Bank accusations, and to paint Sussmann as part of a “joint venture” that included Joffe, Clinton’s campaign, research firm Fusion GPS and cybersecurity experts.

Prosecutors also plan to call two CIA officials to testify that Sussmann offered similar information to them in early 2017.

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Cooper, however, has limited how deeply Durham’s team may go into the particulars of any alleged joint venture among Democratic operatives, ruling that he will not allow “a time-consuming and largely unnecessary mini-trial to determine the existence and scope of an uncharged conspiracy to develop and disseminate the Alfa Bank data.”

Sussmann’s legal team said this week that they plan to call a former New York Times reporter, Eric Lichtblau, to testify about his conversations with Sussmann and Joffe during that time period. A lawyer for Sussmann told the court this week that he expects the reporter will testify about those communications, because Sussmann and Joffe have waived any claims of confidentiality.

Defense lawyers also plan to call as a witness Justice Department Inspector General Michael Horowitz to discuss a related computer data tip that Sussmann brought him in 2017. Sussmann’s lawyers have argued that the charge against their client could have the pernicious effect of discouraging potential witnesses from coming forward to the FBI or other law enforcement agencies with evidence of possible crimes.

The jury selection process began Wednesday, with more than 100 potential jurors being called to court to fill out a written questionnaire. After reviewing those answers, dozens of potential panelists will be called back on Monday for what is expected to be at least a day of final jury selection.

While the written questionnaire largely focuses on broad topics common to jury trials, it also asks a question that is more uniquely suited to a jury pool of people living in the nation’s capital: whether any would-be jurors, or anyone close to them, participated in an investigation or inquiry “into Russian interference with the 2016 election or the federal government’s investigation of Donald Trump’s relationship with Russia?”

“If yes,” the questionnaire says, “please explain.”