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Special counsel loses first trial of Trump probe; Sussmann acquitted

‘Politics were not a factor,’ the jury forewoman said after Michael Sussmann was cleared of lying to the FBI during the 2016 election

Michael Sussmann, a cybersecurity lawyer who represented the Hillary Clinton presidential campaign in 2016, outside the federal courthouse in D.C. on May 31. (Manuel Balce Ceneta/AP)
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A federal jury delivered a major setback to special counsel John Durham on Tuesday, acquitting cybersecurity lawyer Michael Sussmann on a charge that he lied to the FBI in 2016 while acting on behalf of the Hillary Clinton campaign.

After a two-week trial that revived old controversies about the FBI’s role in that presidential election, the verdict was not a close call or a hard decision, two jurors told The Washington Post.

“Politics were not a factor,” said the jury forewoman, who declined to give her name as she left the federal courthouse in downtown Washington. “We felt really comfortable being able to share what we thought. We had concise notes, and we were able to address the questions together.

“Personally, I don’t think it should have been prosecuted,” the forewoman added, saying the government “could have spent our time more wisely.” A second juror told The Post that in the jury room, “everyone pretty much saw it the same way.”

Sussmann was accused of lying to a senior FBI official in September 2016 when he brought allegations of a secret computer communications channel between the Trump Organization and Russia-based Alfa Bank. FBI agents investigated the data but concluded there was nothing suspicious about it.

Durham was appointed three years ago by President Donald Trump’s attorney general, William P. Barr, to look for possible wrongdoing among federal agents who investigated Trump’s 2016 campaign. The probe has become a Rorschach test of sorts for partisans still eager to spar over which presidential candidate was treated unfairly in the 2016 election.

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After about six hours of deliberations, the jury unanimously rejected Durham’s charge that Sussmann falsely told the FBI he was not bringing it the information on behalf of any client. Prosecutors allege that Sussmann sought out the FBI on behalf of the Clinton campaign and technology executive Rodney Joffe; Sussmann’s defense attorney countered that he acted on his own, without his clients’ knowledge.

Sussmann, who had remained masked throughout the trial, stood up in court and took off his mask as the jury forewoman read the verdict. Stepping outside the courthouse, he thanked the jury.

“I told the truth to the FBI,” he said. “Despite being falsely accused, I am relieved that justice ultimately prevailed in this case. As you can imagine, this has been a difficult year for my family and me. But right now, we are grateful for the love and support of so many during this ordeal, and I’m looking forward to getting back to the work that I love.”

A Justice Department spokesman did not immediately comment on the Sussmann verdict, though it is likely to increase calls from outside the department to end Durham’s assignment.

The Sussmann case marked the first trial to arise out of Durham’s work as special counsel. The longtime prosecutor plans another trial in the fall, of a researcher accused of lying to the FBI about his research into Trump. In a previous Durham case, a former FBI lawyer pleaded guilty to altering a government email.

Durham did not speak outside court on Tuesday, instead issuing a statement that said, “While we are disappointed in the outcome, we respect the jury’s decision and thank them for their service.”

Gregory Brower, a former U.S. attorney and senior FBI official, said the acquittal was “not a surprising result given the lack of evidence.” The only witness to Sussmann’s conversation with then-FBI lawyer James Baker was Baker himself, and he has given conflicting statements over the years and took no notes on their discussion.

Brower noted that much of what Durham was tapped to investigate was exhaustively examined by the Justice Department’s inspector general before Durham was appointed. He also said the government historically has charged people with making false statements based on direct, real-time written or recorded records of the statements, rather than people’s memories.

“The special counsel was only appointed because the former president wanted an investigation that he could point to for political reasons during the campaign, and Barr gave him one,” he said. “This quick acquittal should mark the end of this chapter.”

Sussmann prosecutors also take aim at Clinton, the FBI and the press

Robert Mintz, a former federal prosecutor now in private practice, said the acquittal “will only provide further ammunition for those who believe that the three-year investigation into possible government misconduct during the investigation into potential ties between Russia and the Trump campaign should soon come to an end.”

Over two weeks of testimony, the case rehashed some of the bitter controversies from the Trump-Clinton contest.

Jurors were 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. Prosecutors argued Sussmann’s lie was just one part of a larger 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.

“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.”

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.

The jury ultimately rejected the prosecution’s claims — apparently swayed by Sussmann’s attorney, Sean Berkowitz, who said the prosecution was trying to turn a 30-minute meeting more than five years ago into a “giant political conspiracy theory.”

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 showed that the Clinton campaign did not want the Alfa Bank allegations taken to the FBI, because the campaign preferred to see 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 were, “the jails of Washington, D.C., would be teeming over.”

What's at stake in the Sussmann trial

Berkowitz readily conceded that Sussmann talked to reporters as part of his job, including journalists for The Post and Reuters. He said prosecutors brought the case because they suffered from “tunnel vision” over news articles 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 was the FBI’s top lawyer when he met with Sussmann on Sept. 19, 2016. Baker told the jury that he was “100 percent confident” that Sussmann insisted to him he was not acting on behalf of a client and that if he had believed that Sussmann was acting on a client’s behalf, he would have handled the conversation differently and perhaps not even agreed to the meeting.

Sussmann’s attorneys repeatedly challenged Baker’s credibility, 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. In response to questions on the witness stand, he said he couldn’t remember 116 times, according to Berkowitz.

Baker, who now works for Twitter, testified that Sussmann told him that a major newspaper — he later learned it was the New York Times — was preparing to write about the allegations. That apparently worried Baker; he said 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 to the Times.