The first trial, emerging from Special Counsel John Durham’s investigation, began on Tuesday – when prosecutors accused former Hillary Clinton attorney Michael Sussmann of attempting to stage an “October surprise” when he was a senior FBI official visited to discuss an allegation about Trump and Russia.
The allegation fell flat, but the meeting itself constituted an attempt to “use and manipulate” federal law enforcement for political ends, prosecutors argued.
Sussmann’s defense team argued he was outspoken in acting on his own to bring information to authorities, saying the intervention did not benefit the Clinton camp in any way.
This all comes years after the first media reports of suspicious computer traffic between the Trump Organization and a Russian bank were described, at a time when Trump and his campaign for ties to Russia in the election were under scrutiny.
Attorney Michael Sussmann contacted FBI General Counsel James Baker with a “tip” of information about what appeared to be unusual dealings between the Trump Organization and a Russian bank. He is accused of lying to the FBI when he said he was not working on behalf of a client
Sussmann is accused of lying to the FBI at the start of the Trump-Russia probe in the final weeks of the election. Defense attorneys told the jury he never lied.
Sussmann is accused of misleading the FBI during a September 2016 meeting by telling the FBI’s chief counsel that he was not acting on behalf of a client when he presented computer data he said related to Russia with the then candidate Donald Trump could connect. In reality, prosecutors say, he was acting on behalf of the Clinton campaign and another client who had provided him with the data.
Tech executive Rodney Joffe had told Sussmann about “communications between internet servers maintained for the Trump organization and servers owned by Russia’s Alfa Bank” — information he would share with a legal partner and the FBI.
Special Counsel John Durham, the prosecutor assigned to investigate possible government wrongdoing in the early days of the Trump-Russia probe, exits federal court in Washington May 16 at the start of Sussmann’s trial. He is accused of misleading the FBI when he presented information, a charge he denies
Sussmann joined the FBI weeks before the 2016 election. Prosecutors say he tried to stage an “October surprise” in the campaign
Prosecutors, faced with a Washington, DC jury that may have had pre-existing notions of Trump, Clinton and Russia, described Sussmann as abusing his “privilege.”
“This is a case of privilege…the privilege of an attorney who thought the powerful didn’t follow the normal rules, that he could use the FBI as a political tool,” Assistant Special Counsel Deborah Shaw told the jury in the case.
“The defendant lied in order to direct the FBI’s power and resources to his own ends and to further his clients’ agendas.
He lied, prosecutors told the jury, hoping to create an “October surprise” in the FBI investigation into Trump and negative media coverage about him, and because he knew the FBI would find the information less credible, if it felt they were being presented on behalf of the Clinton campaign.
“He told a lie designed to achieve a political goal, a lie designed to get the FBI involved in a presidential election,” said prosecutor Brittain Shaw.
Former FBI General Counsel James Baker
But Sussmann’s attorneys tried to counter all of the prosecution’s allegations, presenting him as a respected attorney with extensive experience in law enforcement intelligence matters who has never and never would lie to the FBI. The fact that he was representing Democratic clients was well known to the FBI and was not something he wanted to hide.
“He was someone the FBI knew was representing partisan clients,” defense attorney Michael Bosworth said in his opening statement. “The FBI knew he was representing the Clinton campaign that summer. The FBI knew he was an attorney for the DNC, the Democratic Party itself.
In any event, Bosworth said it was impossible for prosecutors to prove Sussmann’s lie because only he and the FBI attorney he was meeting with, James Baker, were present and neither took notes. Five and a half years after the meeting, Baker’s memory of what was said is “clear as mud,” Bosworth said.
Sussmann’s trial is the first to emerge from Special Counsel John Durham’s investigation into the FBI’s original investigation into Russian election interference and possible links to the Trump campaign. Although Durham was believed to have focused, at least initially, on misconduct by government officials during the course of the Russia probe, the Sussmann case alleges misconduct by a tipster to the FBI, not the FBI itself.
Durham was appointed by former Donald Trump Attorney General Bill Barr.
In an early realization of the politically charged nature of the case, Shaw urged jurors to set aside any feelings they might have toward Trump, Russia or Clinton.
“Some people have very strong feelings about politics and Russia, and many people have strong feelings about Donald Trump and Russia. But we’re not here because those allegations pertained to any of them, nor are we here because the client was Hillary Clinton’s campaign,” Shaw said.
Rather, she added, “We are here because the FBI is our institution. It should not be used as a political tool.’
It concerns a meeting on September 19, 2016, at which Sussmann Baker, then General Counsel of the FBI, presented computer data collected from another of his clients and alleged a clandestine contact between computer servers at the Trump Organization and Russia-based Alfa bank showed .
That connection, if true, would have been explosive at a time when the FBI was investigating whether the Trump campaign and Russia were conspiring to influence the election.
The FBI examined the data but found nothing harmful, and the communications instead reflected what Shaw described as a “spam email server” being used to send out marketing.
“The server did not reflect a crime,” Shaw told jurors, “nor was it a national security threat.”
Bosworth said he takes the computer data seriously because it appeared to show “strange contacts” between Trump’s business organization and Russia and because it was given to him by Rodney Joffe, a client who Bosworth said was such a respected technology executive that the FBI had asked him as an informant.
He said Sussmann sought the meeting to alert Baker that the New York Times might soon publish a story about the computer data. Shaw, the prosecutor, disagreed, saying Sussmann was frustrated that a reporter he worked with had not yet written about the data and wanted to initiate an FBI investigation to ensure media coverage.
But after the meeting, the FBI asked the newspaper to delay publication. That’s the opposite of what the Clinton campaign would have wanted, Bosworth said, implying he wasn’t acting on behalf of the campaign in calling the meeting.
“The meeting with the FBI was the complete opposite of what the Clinton campaign would have wanted,” Bosworth said.
“The FBI meeting was something they didn’t authorize, didn’t instruct him to do, and wouldn’t have wanted,” Bosworth continued.
Durham was appointed by then-Attorney General William Barr in 2019 to look into wrongdoing while the US government explored possible coordination between Russia and the 2016 Trump campaign. An investigation by a former special counsel, Robert Mueller, found no criminal conspiracy between Russia and the Trump campaign, although it found that Russia attempted to support Trump’s campaign.
The Alfa Bank affair was a peripheral part of the FBI’s investigation, and allegations of a possible secret contact were not even mentioned in Mueller’s 2019 report.
Durham’s work has resulted in three cases. Only the one against Sussmann reached the trial.
In 2020, a former FBI attorney named Kevin Clinesmith pleaded guilty to altering an email related to FBI surveillance of a former Trump campaign adviser, Carter Page. In seeking warrants to wiretap Page, the FBI relied on research files of anti-Trump intelligence, colloquially known as the “Steele dossier,” which contained rumors and unverified claims.
Last year, Durham accused a Russia analyst who was a source on that dossier of lying to the FBI about his own sources of information — including a longtime Hillary Clinton supporter. Igor Danchenko has pleaded not guilty.