Prosecutors on Friday urged a jury to convict well-connected attorney Michael Sussmann, saying that he thought he had “a license to lie” to the FBI at the height of the 2016 presidential campaign. Sussmann’s defense lawyers countered that the case against Sussmann was built on a “political conspiracy theory.”
The case brought by Special Counsel John Durham charges that Sussmann lied by claiming he did not bring the information to the FBI on behalf of any client, when he allegedly did so on behalf of two clients: the Clinton campaign and a tech executive, Rodney Joffe.
The trial marks the first courtroom test of the investigative work done by Durham, who was appointed by Trump administration Attorney General William P. Barr to probe whether the federal agents who investigated the 2016 Trump campaign committed wrongdoing.
A conviction of Sussmann would be heralded by Trump and his supporters as validation of their claims the FBI conducted a witch hunt investigation of the Republican standard-bearer before and after the 2016 election. An acquittal would probably fuel calls from the left for the Justice Department to end Durham’s assignment.
The jury, which began deliberating about 1 p.m. Friday, is tasked with answering a fairly simple legal and factual question — whether Sussmann lied about his client and whether that lie was relevant to the FBI investigation. During two weeks of testimony, however, prosecutors have argued the case is really about a broader scheme by Clinton loyalists to use the FBI and news reporters to launch a damaging, last-minute revelation against Trump that would tip the election to Clinton. The FBI investigated the Alfa Bank allegations and decided they were unfounded.
“You can see what the plan was,” Assistant Special Counsel Andrew DeFilippis told jurors in D.C. federal court. “It was to create an October surprise by giving information both to the media and to the FBI to get the media to write that there was an FBI investigation.”
“Under the law, no one has a license to lie to the FBI," DeFilippis said. “Under the law, no one is entitled to make a false statement to weaponize a law enforcement agency in support of a political agenda — not Republicans, not Democrats.”
Despite the trial’s frequent references to Clinton, Trump and other political figures, the prosecutor insisted that “this case is not about politics, it’s not about conspiracy, it’s about the truth.” Sussmann lied, DeFilippis said, because if he’d told the FBI that he was acting on behalf of Clinton, the FBI was less likely to consider his evidence or open an investigation.
Sussmann’s lawyer, Sean Berkowitz, said the prosecution has tried to turn a brief 30-minute meeting more than five years ago into a “giant political conspiracy theory.”
The defense lawyer said there is plenty of reason to doubt the account of James Baker, the former FBI official who met with Sussmann. Baker has offered varying answers in the past about the meeting. During his trial testimony, in response to various questions, he said he couldn’t remember 116 times.
“The time for political conspiracy theories is over, and the time to talk about the evidence is now,” Berkowitz said in a booming baritone. Wearing a gray suit and a black mask, Sussmann listened closely as lawyers argued over his fate.
Prosecutors showed the jury emails, law-firm billing records and even a Staples receipt for thumb drives to tie Sussmann to the Clinton campaign. But Berkowitz said much of the witness testimony shows that the Clinton campaign did not want the Alfa Bank allegations taken to the FBI, because they wanted a news story about the issue and feared an investigation might complicate or delay such stories.
“There is a difference,” Berkowitz said, “between having a client, and doing something on their behalf.”
He ridiculed prosecutors for painting as nefarious efforts to dig up damaging information about Trump for a campaign.
“Opposition research is not illegal,” he said, adding that if it was, “the jails of Washington, D.C., would be teeming over.”
Berkowitz readily conceded that Sussmann talked to reporters as part of his job, including journalists for The Washington Post and Reuters. He said prosecutors brought the case because they suffered from “tunnel vision” over two news stories in Slate and the New York Times that appeared on Oct. 31, 2016, and — he argued — had little impact on the campaign.
"That’s the story? That’s the leak? That’s the conspiracy? Please,” Berkowitz said.
The key witness of the trial was Baker, who met with Sussmann on Sept. 19, 2016, when Baker worked as the FBI’s top lawyer. Baker told the jury he was “100 percent confident” that Sussmann insisted to him he was not acting on behalf of a client and that if he had known, he would have handled the meeting differently and perhaps not even agreed to the meeting at all.
Baker is the sole direct witness to the conversation, and Sussmann’s lawyers have repeatedly challenged his credibility on this point, noting that in one earlier interview, Baker said Sussmann was representing cybersecurity clients; in another, he seemed to say he didn’t remember that part of the talk. Prosecutors introduced billing records from Sussmann’s law firm listing the time he spent on the issue as work on behalf of the Clinton campaign.
Baker, who now works for Twitter, testified that Sussmann also told him a major newspaper — he later learned it was the New York Times — was preparing to write about the allegations. That worried Baker: He knew a news story would probably cause any suspicious communications to stop, so he wanted the FBI to be able to investigate before an article appeared. Prosecutors say it was Sussmann himself who had provided the allegations about Trump information to the Times.
“It would have concerned me, whether there was an effort to play the FBI and drag us into the ongoing political campaign and make us a pawn in the campaign in some fashion,” Baker said. “It would have alarmed me, this nexus with the press and whether there was some effort to engineer a situation where the FBI would be investigating this material and that the press — even though it couldn’t determine the reliability of that material and couldn’t report on it — could report the FBI was investigating it.”