Special Counsel John Durham’s three-year probe into the FBI and Robert Mueller’s investigations of former President Donald Trump’s 2016 presidential campaign will reach a critical moment with Monday’s trial of former Hillary Clinton campaign lawyer Michael Sussmann.
The outcome of the closely watched case in Washington, DC — the first trial to result from Durham’s virtually leak-proof efforts — will be both a test of his work and a potential harbinger of the looming 2024 election, according to observers.
“If Sussmann, one of Hillary Clinton’s top campaign lawyers, is convicted, it will further confirm that Trump is a crime victim,” said Tom Fitton, president of the conservative Judicial Watch activist group.
“I would expect him to continue to say that [the government] illegally spied on him and that Hillary did it. And if Clinton runs, this anti-corruption message is even more likely to be front and center.”
Washington, DC, lawyer Jim Trusty, a former high-ranking Justice Department prosecutor, said that Durham “has a pretty strong case” against Sussmann, who’s charged with a single count of lying to the FBI.
“But you never know if a jury will rebel against [false-statement allegations] that are not accompanied by more serious crimes,” Trusty said.
“Certainly, an acquittal would look bad and would enable politicians to call for an end to his work.”
Last year, the first defendant charged by Durham — former FBI lawyer Kevin Clinesmith — was sentenced to one year of probation after pleading guilty to doctoring an email to get a wiretap renewed against former Trump campaign adviser Carter Page.
Sussmann allegedly misled a top-fed by claiming he wasn’t “acting on behalf of any client” when he handed over three “white papers” and two thumb drives that purportedly pointed to a secret backchannel between a Trump Organization computer server and Russia’s Alfa Bank, now under US sanctions tied to the invasion of Ukraine.
The cybersecurity expert also shared the explosive claims with reporters, resulting in a Slate magazine article — published just eight days before the election — that was eagerly seized on by Clinton, who tweeted, “It’s time for Trump to answer serious questions about his ties to Russia.”
The Democratic candidate also released a statement from top campaign aide Jake Sullivan, now President Joe Biden’s national security adviser, who said, “This secret hotline may be the key to unlocking the mystery of Trump’s ties to Russia.”
But an FBI investigation found “that the email server at issue was not owned or operated by the Trump Organization but, rather, had been administered by a mass marketing email company that sent advertisements for Trump hotels and hundreds of other clients,” according to Sussmann’s indictment.
The charging document alleges that the information Sussmann gave then-FBI general counsel James Baker on Sept. 19, 2016, was the result of efforts by one of his clients, since-retired tech executive Rodney Joffe, to “exploit” his industry connections to “create a ‘narrative’ regarding Trump.”
It cites an Aug. 20, 2016, email Joffe sent to April Lorenzen, an internet security expert in Rhode Island who discovered the server traffic, and two researchers at the Georgia Institute of Technology.
“Being able to provide evidence of anything that shows an attempt to behave badly in relation to this, the VIPs would be very happy,” Joffe wrote.
In addition, the indictment highlights an email sent two days later that Durham said raised “concerns about the researchers’ bias against Trump.”
In it, Georgia Tech researcher Manos Antonakakis warned the group, “The only thing that drives us at this point is that we just do not like [Trump]. This will not fly in eyes of public scrutiny. Folks, I am afraid we have tunnel vision.”
Durham also noted that Joffe sent an email following Trump’s victory in which he said he’d been offered a top cybersecurity job “by the Democrats when it looked like they’d win.”
According to his indictment, one of the “white papers” was drafted by the research firm Fusion GPS, which hired former British spy Christopher Steele to compile the largely discredited “Steele dossier” against Trump.
Both the Clinton campaign and the Democratic National Committee were fined by the Federal Election Commission in March for disguising payments to Fusion GPS on official disclosure forms.
In April, Durham doubled down on the ties between Sussmann, Joffe and the Clinton campaign, saying his investigation showed they were involved in a “joint venture to gather and disseminate purportedly derogatory internet data” against Trump.
And earlier this month, Durham prosecutor Andrew DeFilippis argued in court that jurors should learn about a July 2016 meeting between Sussmann and Steele, calling it “incredibly probative and relevant” evidence of the “strong intersection” of their work.
But presiding federal Judge Christopher Cooper, who was nominated by former President Barack Obama, has repeatedly limited what prosecutors can tell the jury, noting in one ruling that the charge against Sussmann “does not relate to the substance of the shared material, but rather to Sussmann’s alleged erroneous statement that he was not attending the meeting [with Baker] on behalf of a client.”
In a May 7 order, Cooper ruled that Joffe’s email about the job offer was “inadmissible hearsay” and also said Durham “must steer clear of evidence regarding the accuracy of the data, which the defense does not plan to place at issue.”
“Nor will the Court conduct a time-consuming and largely unnecessary mini-trial to determine the existence and scope of an uncharged conspiracy to develop and disseminate the Alfa Bank data,” he added.
Sussmann’s team has yet to reveal its strategy but last week asked Cooper to explicitly inform jurors in the nation’s overwhelmingly Democratic capital — which in 2016 voted in favor of Clinton, 90.9% to 4.1% — that the defendant had worked against Trump.
Cooper has noted that legal papers and courtroom arguments suggest the defense will contend that Sussmann and Joffe “shared the view that bringing the potential communications channel to the FBI’s attention was important to protect national security, regardless of any political implications.”
Sussmann — who Durham alleges billed the Clinton campaign for meetings and phone calls with Joffe and the campaign’s general counsel, Marc Elias — will also likely deny “that he had an attorney-client relationship with the Clinton Campaign that covered activities related to the Alfa Bank data,” the judge wrote earlier this month.
On May 8, Sussmann’s lawyers filed court papers alleging that Baker “has offered inconsistent testimony” about their 2016 meeting, along with notes written by DOJ personnel during a March 6, 2017, during which Baker “was silent” when then-FBI Deputy Director Andrew McCabe “stated that Mr. Sussmann brought the allegations to the FBI on behalf of a client.”
“If Mr. Baker had disagreed with Mr. McCabe on such a purportedly important statement, presumably he would have made that known,” Sussmann’s lawyers wrote.
Sussmann’s lawyers have also said they have 300 FBI email chains that show the bureau was aware he represented Democratic campaigns, according to the Washington Post.
A joint filing by Durham and Sussmann over proposed instructions to the jury also included several disputes regarding the “materiality” of Sussmann’s alleged lie to the FBI in terms of its influence over the bureau’s decision-making process.
Several legal experts said that issue could prove crucial.
“The evidence is powerful that Sussmann made a false statement to federal law enforcement,” said Trusty, the former DOJ prosecutor and a contributor to Fox News.
“I think it is very unlikely that the battle will be about falsehood, it will be about materiality. Prosecutors have to prove that the false statement had the potential to affect a federal investigation. This ‘potential’ is a very low bar for prosecutors to overcome.”
Manhattan lawyer Seth DuCharme, a former acting Brooklyn US attorney and principal associate deputy attorney general, also said, “If you look at the case law, the courts have been really generous with the government on appeal as to what could have a natural tendency or be capable of influencing an investigation.”
“Really, little stuff has passed the appellate test,” he said.
“It’s a pretty generous standard for the government. It’s a tough standard on a defendant.”
But former Detroit US Attorney Barbara McQuade, now a Michigan Law School professor and legal analyst for MSNBC and NBC News, said she thought Durham actually faced an uphill battle.
“It seems that the biggest challenge in this case may be proving whether the statement is material, or tended to affect the matter under investigation, in light of FBI general counsel Jim Baker’s deposition testimony that the FBI conducts independent assessments of information regardless of the source,” she said in an email.