Michael Sussmann’s trial begins Monday: What to know

The trial will refocus attention on controversies from the 2016 election.

Michael Sussmann, right, a former federal prosecutor, in September 2021. (Amanda Andrade-Rhoades for The Washington Post)
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What is this trial about?

Michael Sussmann, a former Justice Department prosecutor who went on to work at a law firm that has long represented Democrats, is charged with one count of lying to the FBI. His trial begins with jury selection on Monday in federal court in Washington, D.C., and will focus in part on controversies from the 2016 presidential election.

At a meeting with the FBI in September 2016, Sussmann, a partner at Perkins Coie, presented computer data suggesting possible computer communications between Donald Trump’s company and a Russian bank. He is accused of lying to the FBI when he claimed in the meeting that he was not bringing them this information on behalf of any client. Prosecutors say Sussmann was acting on behalf of the Hillary Clinton campaign, and on behalf of a tech executive who gathered the data, Rodney Joffe.

Sussmann trial will test credibility of controversial figures from 2016 election

Who brought this case?

The Sussmann case marks the first trial to arise out of the work of Special Counsel John Durham. He was appointed in 2019 by Attorney General William P. Barr to examine how the FBI and other agencies investigated the Trump campaign amid Russian interference in the presidential election.

Durham’s appointment, and the cases he has filed, are controversial. Republicans have long wanted to “investigate the investigators” — hoping to show that the FBI unfairly targeted Trump. Democrats have accused Durham of seeking to punish those who investigated Trump. How you see the Sussmann case probably depends largely on what you think about the 2016 election and the FBI’s role in it.

What is at stake?

In a word, reputations. A conviction could spell the end of Sussmann’s legal career and cast a cloud over the long-defunct Clinton campaign, but it is unlikely to result in serious jail time or other consequences. An acquittal would be damaging for Durham’s credibility and probably would intensify calls from liberals for Attorney General Merrick Garland to shut down Durham’s long-running probe.

How a battle over Trump computer data is playing out in court

What does the jury have to decide?

Pretrial evidence suggests there won’t be much debate over whether Sussmann told the FBI that he was not acting on behalf of a client. Instead, the real issue is what lawyers call “materiality” — whether Sussmann’s claim was relevant to how the FBI investigated the computer data. Durham argues that if the FBI had known Sussmann was working for political figures with an agenda, the bureau would have proceeded differently. Sussmann’s legal team says the FBI knew full well that Sussmann was a lawyer for Democrats, because the bureau had dealt with him many times before.

The status of key investigations involving Donald Trump

Who are the witnesses?

The key witness in the case is James Baker, the FBI’s former top lawyer, who met with Sussmann in September 2016 and received the information. The trial will also feature more than a half-dozen current or former law enforcement officials. They will revisit the days toward the end of the 2016 campaign when tensions were running extremely high inside the FBI as agents pursued cases involving both presidential candidates — Trump and Clinton.

What else is at stake?

Durham’s theory of the case is that Sussmann was engaged in a kind of joint venture — with the Clinton campaign, opposition researchers and computer experts — to generate news stories that would damage Trump’s chances of winning the presidency. The same group also wanted to get the FBI to investigate the allegations of coordination between the Trump campaign and the Russians, and perhaps spur news stories about such an investigation.

It’s clear from court filings that Durham’s team takes a dim view of this alleged joint effort. However, while a number of current and former federal law enforcement officials say that such opposition research may appear unseemly, they also say it will be a heavy lift for prosecutors to convince a jury in the nation’s capital that such behavior amounts to a crime.

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