WASHINGTON (CN) — A federal jury in Washington heard closing arguments on Friday in Trump-era special counsel John Durham’s case against former Hillary Clinton campaign lawyer Michael Sussmann.
Describing Sussmann as a “powerful” D.C. attorney and former federal prosecutor, Assistant U.S. Attorney Jonathan Algor told jurors that he used his privilege to “bypass normal channels” to expedite a meeting on Sept. 19, 2016, with the FBI’s top lawyer at the time, James Baker. During that meeting just weeks before the Nov. 8 election, Sussmann gave Baker data files said to tie Donald Trump to Russia’s Alfa Bank and allegedly lied that he was not there on behalf of any client, but as a good citizen bringing it on his own out of national security concerns.
“It wasn’t about national security,” Algor said. “It was about promoting opposition research against the opposite candidate: Donald Trump.”
Sussmann claims he was only concerned about national security because he had to “lull” Baker away from the notion that the records – which allegedly contained evidence of backchannel computer communications between Trump’s company, The Trump Organization, and Kremlin-backed Alfa Bank – might be sponsored by “political enemies,” he said. The allegations have since been deemed unsubstantiated.
Because Sussmann was working at Perkins Coie law firm as legal counsel for the Clinton campaign and cybersecurity expert Rodney Joffe on matters related to Russia hacking Democratic National Committee computer servers at the time, prosecutors say Sussmann had to create the false impression that it was neutral scientists who “stumbled upon” the Trump-Alfa Bank data and that it was a matter of national security.
While walking the jury through the evidence presented over the last 10 days of the trial, Algor brought up Perkins Coie billing documents that he says are proof that Sussmann and Joffe had been working on the Trump-Alfa Bank records since March 2016, as part of opposition research for the Clinton campaign.
“Billing records are a reasonable way to go because lawyers track what they are doing,” Algor said.
But the prosecutor said when Sussmann and Joffe brought the Trump-Alfa Bank records to New York Times reporter Eric Lichtblau, their plan to unleash an "October surprise” on Trump was foiled because Lichtblau held off on publishing. And that is when Sussmann saw an opportunity to help his clients, Joffe and the Clinton campaign, by bringing the records to the FBI, so that the bureau would launch an investigation that the nation’s paper of note could report on, according to Algor.
Algor said Sussmann’s claim that he was not acting on behalf of any client is not true because a person acting on their own behalf “would not say and do the things that Mr. Sussmann did on Sept 19.”
The prosecutor also recalled Baker’s testimony that if he knew Sussmann was representing a client, he might have taken different steps in launching an investigation into the claims.
The fact that Sussmann said he was not there on behalf of a client “shows you exactly why he was there all along” – because he knew he had to conceal his reputation to push the Trump-Alfa Bank allegations to the FBI, he said.
The bureau, he said, knew Sussmann to be a lawyer for the Democratic National Committee who represented victims in cyber hacks. But if a juror were to look for an FBI document stating an agent knew Sussmann worked on political campaigns doing opposition research, he said they are “not going to find it” because the FBI thought of him as a cybersecurity lawyer who is “not the kind of person you would expect to bring in opposition research.”
And given Sussmann’s lengthy legal background, Algor said he “knows how to use words,” which is why he testified to Congress that "it's most accurate to say it was done on behalf of my client," then said the opposite – that he was not representing any client – in subsequent testimony to two other federal agencies.
“That’s not a mistake,” Algor said. “It’s intentional … a plan.”
But Sussmann’s defense team told the jury that while Sussmann’s congressional testimony may be the prosecution’s best evidence, it does not tell the whole story.
What the prosecution did not include, defense attorney Sean Berkowitz said, is the rest of Sussmann’s testimony, in which he states that he did not want to imply he was “directed” to do something against his better judgment and that “it would be most accurate” to say he gave Baker the Trump-Alfa Bank records “not on behalf of a client.”
Berkowitz asked the jury to consider whether Sussmann was advocating for his clients or if those words were “inaccurate, imprecise and the result of it being over a year and a half” after the meeting with Baker in September 2016.
“Do you think he intentionally lied about this – or do you think it’s the product of confusion?” Berkowitz asked.
He also recalled testimony from Robby Mook, then-manager of the Clinton campaign, and Marc Elias, the lead Perkins Coie partner working with the campaign, who both said they never directed Sussmann to bring the Trump-Alfa Bank records to the FBI because it would not have benefited the campaign.
“I did not see it as some sort of October surprise and I don’t believe other people on the campaign did either,” Mook said.
Berkowitz reminded jurors that Baker testified last week that he did not recall an interview, about two months ago, in which he told prosecutors that Sussmann’s "no-client" comment did not have an impact on his decision-making process regarding the Trump-Alfa Bank records.
“Sitting here today, I don’t recall telling them that,” Baker said.
The defense attorney also told jurors he had a few questions for the prosecution: why did the FBI choose not to interview Sussmann if his motivation mattered, and why did prosecutors meet with witnesses “so many times” before the trial?
Berkowitz told jurors their job “is to listen to the evidence … what comes from the witness stands” and “not what comes from [prosecutors] mouths or my mouth.”
“It’s your turn to do justice, to prevent an injustice,” he said.
The jury began deliberating on Friday afternoon and is expected to resume deliberations on Tuesday.
Sussmann, 58, has pleaded not guilty to a single charge of making a false statement to the FBI. His attorneys asked U.S. District Judge Christopher Cooper to dismiss the case in March, but the Obama appointee allowed it to proceed to trial.
The defendant resigned from his position at Seattle-based law firm Perkins Coie after being indicted last September. If convicted, he faces up to five years behind bars.
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