Special Counsel John Durham’s star witness in the trial of a cybersecurity lawyer with ties to Democrats began testifying Wednesday, saying he was not “out to get” Michael Sussmann, the attorney accused of lying to the FBI in the heat of the 2016 presidential race.
The charge revolves around a meeting the two men had on Sept. 19, 2016, during which Sussmann brought the FBI allegations that a Trump Organization computer was in secret communication with Alfa Bank, which is based in Russia.
Durham’s office was created by President Donald Trump’s Justice Department to investigate allegations of possible wrongdoing by federal agents who probed the 2016 Trump campaign.
The special prosecutor has accused Sussmann of lying to Baker by claiming he was not acting on behalf of any particular client when he went to the FBI. Prosecutors allege Sussmann was in fact acting on behalf of Hillary Clinton’s campaign and a technology executive, Rodney Joffe. Sussmann has denied the charge.
Baker’s testimony is probably the most important evidence in the case, because he and Sussmann were alone in the meeting, and Baker apparently took no notes of the conversation.
Baker, who now works as a senior lawyer at Twitter, served as the FBI’s general counsel when Sussmann contacted him to share the research data and allegations with the bureau. In court, Baker read a text that Sussmann sent him the night before to arrange the meeting.
“Jim – It’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. Do you have availability for a short meeting tomorrow/ I’m coming on my own – not on behalf of a client or company – want to help the Bureau. Thanks,” Sussmann texted.
Baker said the two men agreed to meet at the FBI headquarters the following day. The text was discovered just a month or two before the trial; when asked why it took Baker so long to find it, he said he hadn’t previously been asked to look.
“Frankly, I’m not out to get Michael, and this is not my investigation, this is your investigation,” Baker told Assistant Special Counsel Andrew DeFilippis. “You ask me a question, I answer. You ask me to look for something, I look for it.”
Wednesday’s testimony ended before Baker could describe his face-to-face conversation with Sussmann, including what he concluded about Sussmann’s motivation for presenting the information. He is expected back on the witness stand Thursday morning.
Baker’s appearance came shortly after lawyers for Sussmann suggested they might seek a mistrial, because an earlier witness, Democratic lawyer Marc Elias, suggested a particular question should be answered by the defendant.
In criminal trials, prosecutors and witnesses are not supposed to imply defendants should testify. Sussmann’s lawyer, Sean Berkowitz, said the witness’s exchange with prosecutors was improper and unfair, and he was weighing whether to formally request a mistrial. U.S. District Judge Christopher Cooper signaled he would hear the defense team’s argument but was unlikely to grant such a request.
Earlier in the day, Elias testified about the tumultuous 2016 presidential election, when he worked as the top lawyer for the Clinton campaign. He testified that he never directed or authorized Sussmann to take the allegations of computer ties between Trump and Russia to the FBI — testimony that could help convince the jury Sussmann was acting on his own initiative when he met with Baker, and undercut the accusation that he lied to the FBI lawyer.
Elias argued that it was not necessarily helpful to the Clinton campaign for Sussmann to take the information to the FBI; some Clinton advisers had hoped the New York Times or some other news outlet would write about the allegation, and the FBI’s involvement could slow or delay such a story.
Prosecutors have argued that Sussmann, acting on behalf of the Clinton campaign, was trying to carry out a three-part strategy of looking for derogatory information about Trump, leaking the information and getting the FBI to investigate it.
Ultimately, when the FBI investigated the computer data that Sussmann brought them, agents concluded there was nothing suspicious about it.
At times during his testimony, Elias recounted his intense dislike of Trump as a candidate, especially his suggestion that Russia go hunting for Clinton’s emails even after some Clinton and Democratic emails were already hacked and leaked.
Between the Russian hacking and Trump’s further invitation to the Russians, Elias said the Clinton campaign was “absolutely” under attack.
Elias also blasted the FBI’s handling of those issues, saying that in 2016, the bureau didn’t “do anything to stop bad things from happening” while “taking public stances around that time period that were, in my view, unfair, and putting a thumb on the scale against Secretary Clinton.”