WASHINGTON (CN) — John Durham’s investigation into the FBI’s 2016 Trump-Russia collusion probe entered its third year on Friday, three days before the closely watched court case between the Trump-era special counsel and Democrat-linked lawyer Michael Sussmann will be in front of a federal jury in Washington.
Since being tapped in May 2019 by then-Attorney General William Barr to look into the FBI’s handling of the 2016 probe, the Connecticut federal prosecutor has secured one conviction and is hoping Monday’s jury trial will result in another.
Sussmann, a 12-year veteran of the Justice Department, was indicted last September on a single count for allegedly falsely stating that he was not representing any clients when he met with then-FBI General Counsel James Baker in 2016 and provided him with data files allegedly containing evidence of secret communications between Russia’s Alfa Bank and then-presidential candidate Donald Trump.
Former federal prosecutor Neama Rahmani told Courthouse News that Durham has a strong case to back up his claim that Sussmann hid that he was representing Hillary Clinton’s campaign and tech executive Rodney Joffe during the one-on-one meeting.
“Because it was a material misstatement, all they have to prove is that Sussmann lied to the FBI when he said he wasn’t acting on behalf of the Clinton campaign or Joffe,” Rahmani said.
But as Sussmann tells it, he was not representing any clients during the meeting on Sept. 19, 2016, which was less than two weeks before the election. And even if he was and he lied about it, Sussmann argues it would not have been “material” to — or had a significant impact on — the FBI’s decision to launch the 2016 probe, which found no evidence to support the Trump-Alfa Bank claims.
Rahmani, however, noted that the special counsel’s evidence includes a text message sent weeks before the 2016 presidential election in which Sussmann told Baker that he urgently needed to share “sensitive” information with the FBI “not on behalf of a client or company," and that he "want[s] to help the Bureau."
Durham claims in court filings that the text message is “the same lie” Sussmann allegedly told Baker during the meeting and that Sussmann even “put it in writing.”
Rahmani also highlighted prosecutorial evidence showing Sussmann had worked for the Democratic Party on Russia hacking its computer servers and records from his former employer, Democrat-linked law firm Perkins Coie, show he billed the firm while preparing the data files for the FBI.
Meanwhile, former federal prosecutor Gene Rossi said he would rather be on Sussmann’s trial team than Durham’s.
To persuade a jury beyond a reasonable doubt that Sussman lied, he said, is “a tough row to hoe for any prosecutor."
“You have a ‘he said versus he said’ ... There's no audio. There's no video. There are no contemporaneous notes. There's really no corroboration,” Rossi said. "And when you have that, it's a tough road.”
And Rossi doubts the alleged lie would have made a substantial difference in the FBI’s decision to investigate because Trump’s alleged ties to Russia were already a “huge issue” in late 2015, so “the FBI was already keen on that issue because it was a political hot potato.”
Last month, prosecutors told U.S. District Judge Christopher Cooper that the FBI could have done several things differently if it was aware that Sussmann was representing clients during the 2016 meeting.
“Not only might they have asked who the client was, but the indictment itself said the FBI might have taken additional or incremental steps before opening or closing an investigation,” Assistant U.S. Attorney Andrew DeFillipis said. “It also says it might have allocated its resources differently or more efficiently and uncovered more complete information about the reliability and provenance of the recorded data at issue.”
Rossi also pointed out that Sussmann claims in court filings that he is not guilty because Joffe wanted him to share the data files with the FBI — not as Joffe’s counsel, but to help the bureau.
“You're asking a jury beyond a reasonable doubt to a moral certainty that Sussman intentionally lied, or was he misinterpreted?” Rossi said. “That's a very good argument for a defense attorney.”
The verdict, he said, will likely support one of two narratives about Durham: he is a “righteous” prosecutor investigating “deep state syndrome,” or he is a Barr “sycophant” and “lackey” who is “wasting everybody’s time looking for crimes.”
While there is a chance the special counsel could “hit a home run” and obtain a second conviction, Rossi says “the odds are a little bit better” for the defendant.
“Miracles can happen,” he added.
But if Durham prevails, the former federal prosecutor warns, “it could possibly tarnish the FBI's image because they got hoodwinked.”
“They were given a bill of goods by Sussman [and] if there's a guilty verdict, that suggests that they were too willing to accept information from sources, such as Sussmann, without vetting the motifs and ... motive is always important in any investigation.”
Rahmani echoed those sentiments, telling Courthouse News that the case “is important because you don’t want the FBI or any other law enforcement agency conducting investigations for political purposes.”
And the trial, which begins on Monday, could also lead to the investigation of “others who raised suspicions of collusion between Russia and the Trump campaign,” he said.
Defense attorneys asked Cooper to dismiss the case in March, but the Obama-appointed judge allowed it to proceed to trial.
Sussmann 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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