A lawyer working for Hillary Clinton’s 2016 presidential campaign used his connections with top FBI officials to fuel an investigation into Republican nominee Donald Trump, a prosecutor told jurors on Tuesday during opening statements at the attorney’s trial for allegedly lying to the bureau.
Durham sat in the courtroom Tuesday but did not address the jury.
“The evidence will show this is a case about privilege — privilege of a well-connected D.C. lawyer with access to the highest level of the FBI,” said Assistant Special Counsel Brittain Shaw. Sussmann, she told the jury, believed "he could use the FBI as a political tool.”
Political partisans are closely tracking the trial as a reexamination of some of the more controversial events of the 2016 presidential race, including the role played by the FBI. Trump and his supporters claim Durham’s work shows the FBI mistreated Trump; Democrats charge Durham’s assignment has been tainted by a thirst for score-settling against the former president’s perceived enemies.
In September 2016, Sussmann brought the FBI potential evidence of computer communications between Trump’s company and Alfa Bank, which is based in Russia. The lawyer is charged with lying when he told the FBI he wasn’t bringing the information on behalf of any particular client; in fact, prosecutors say, he was working on behalf of the Clinton campaign and a technology firm executive, Rodney Joffe.
Sussmann has denied the charge. His lawyers insist he never meant to mislead the FBI. And they say a lie about who his clients were would be irrelevant, because the FBI already knew he worked for Democrats.
The FBI looked into the computer allegation and decided there was nothing suspicious about the data. But prosecutors charge that Sussmann’s alleged deception caused the FBI to handle the tip more seriously than agents would have if they knew it was coming from a Democratic campaign.
“Some people have very strong feelings about politics and about Russia,” and about Trump and Clinton, Shaw told the jurors. Those issues, the prosecutor insisted, are not the point of the trial. “We are here because the FBI is our institution. It should not be used as a political tool for anyone. Not Republicans, not Democrats, not anyone.”
Shaw said Sussmann’s tip to the FBI “was all part of a bigger plan” by the Clinton campaign to plant stories in the media and spur the FBI to investigate Trump in the final days of the heated political fight.
“It was a plan to create an October surprise on the eve of the presidential election,” she said, adding the plan “largely succeeded.”
Sussmann’s lawyer, Michael Bosworth, told the jury on Tuesday that the case wasn’t about privilege but long-term relationships that Sussmann had as a former Justice Department prosecutor.
Sussmann’s meeting with the FBI’s top lawyer, James Baker, was not what the Clinton campaign or Joffe wanted, Bosworth said. But Sussmann did it anyway, Bosworth said, because he felt the FBI deserved a heads-up that a news story on the alleged connections between the bank and the Trump Organization was likely to be published soon in the New York Times.
“Relationships matter, especially in the small world of national security lawyers,” Bosworth said. “Do you think Mr. Sussmann would throw his career away, his life away, to tell a lie to that guy?”
Bosworth ridiculed the argument by prosecutors that the FBI didn’t understand who Sussmann’s clients were, showing jurors internal FBI emails and reports that were “littered” with references to Sussmann as a lawyer for Democrats. He said any witnesses who claimed otherwise were being less than accurate.
“Judge the FBI by what they did, not what they’re saying now,” Bosworth told jurors.
Before the trial even began, U.S. District Judge Christopher Cooper tried to tamp down the political overtones, telling one prospective juror on Monday: “We’re not here to re-litigate the 2016 election. … Donald Trump is not on trial. Hillary Clinton is not on trial.”
But, by its very nature, the case will delve into some of the still-debated issues of that campaign. The two-week trial will explore the often opaque world of opposition research, lawyers, and the role the FBI played in the election as Trump and Clinton vied for the presidency, and federal agents pursued very different investigations surrounding each of them.
FBI Supervisory Special Agent Scott Hellman testified that he was assigned to review the allegations and computer data that Sussmann had delivered, but he wasn’t told at the time where it came from. It included an analytic summary claiming the Trump Organization “is using a very unusually configured ‘secret’ email server in Pennsylvania” to conduct “direct communications between the Trump Organization and Alfa Bank bank to the exclusion of all other systems.”
Hellman said he studied the data and, within a day, concluded that it did not support the allegation about direct communications. “The assumption you would have to make is so far-reaching, it just didn’t make any sense,” he said.
The agent also testified that he would have liked to know where the information came from, to aid in his analysis. But knowing “would not have mattered from a technical standpoint. I still would have done the same technical analysis,” Hellman said.
Sussmann defense lawyer Sean Berkowitz read internal FBI messages that Hellman wrote at the time and suggested they showed the agent had been too quick to dismiss the Alfa bank allegations, which were subsequently investigated further by another arm of the FBI.
In one of the messages, Hellman wrote, “The more I read this thing, it feels a little 5150ish,” referencing a section of law that allows individuals to be involuntarily admitted for mental health treatment. Asked what he meant by that remark, Hellman said he meant that perhaps the person who authored the Alfa Bank allegations “was suffering from some mental disability.”