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Here’s A Play-By-Play Of The Special Counsel Criminal Case Heading Into Week Two

Michael Sussmann going to trial
Image CreditFox Business / YouTube screenshot

Today starts week two in United States v. Sussmann, Special Counsel John Durham’s false statement case against Michael Sussmann.

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Today starts week two in United States v. Sussmann, Special Counsel John Durham’s false statement case against Michael Sussmann. According to the grand jury indictment, Sussmann lied to former FBI General Counsel James Baker when he told Baker he was not acting on behalf of any client when he provided Baker with data supposedly establishing an Alfa Bank-Trump connection, when in fact Sussmann represented both the Hillary Clinton campaign and Rodney Joffe.

After a brief interlude on Friday to accommodate the vacation schedule for a defense witness, former Clinton campaign manager Robby Mook, on Monday jurors will hear again from the government in its case-in-chief. Here’s what happened last week to prepare you for the week ahead.

A Tale of Two Themes

Prosecutors and the defense team began last week by framing their overriding themes for the jury during opening statements.

“Privilege” served as prosecutors’ one-word refrain as they introduced the case to the D.C. federal jury. “The evidence will show that this is a case about privilege: the privilege of a well-connected D.C. lawyer with access to the highest levels of the FBI; the privilege of a lawyer who thought that he could lie to the FBI without consequences; the privilege of a lawyer who thought that for the powerful the normal rules didn’t apply, that he could use the FBI as a political tool,” government attorney Brittain Shaw told jurors.

The privileged D.C. lawyer and defendant Sussmann executed the plan to politicize the FBI with “a look, a leak, and a lie,” according to the special counsel. The “look” consisted of researchers scouring internet traffic to establish a potential tie between Trump and Russia. The “leak” came after, when Sussmann and tech executive Joffe “leaked the Alfa Bank allegations to a reporter at The New York Times with the hope and expectation that he would run a story about it.”

Then came the lie, the special counsel explained, telling the jury: “You will see that when the reporter didn’t publish this story right away, the defendant and others decided to bring this information to the FBI and to create a sense of urgency, to also tell the FBI that a major news organization was running a story within days. That’s when the defendant requested the meeting with the FBI general counsel and told him that he was not doing this for any client.”

Lawyers for Sussmann told a completely different tale, with the defense’s theme focused on “credentials and concern”—Sussmann’s credentials as “a serious national security and cyber security lawyer” and his genuine concern for national security.

Sussmann spent more than a decade as a federal prosecutor before entering private practice and, even then, Sussmann retained a top-secret clearance, the defense team stressed. Likewise, Sussmann’s client, Joffe, came well-credentialed—an “Internet executi­ve who was the world’s leading cyber expert, the world’s leading expert on DNS data, who was an FBI confidential informant, who had relationships up and down the government.”

Thus, when Joffe approached Sussmann with suspicious data, Sussmann took the concern seriously—more so, his lawyers argued, because at the time stories of a Trump-Russia connection were swirling. That is why Sussmann approached his friend Baker with the Alfa Bank data—to assist his former colleague and to warn the FBI of a news report that was about to hit the wires.

Nothing else makes sense, Sussmann’s attorneys stressed, telling the jurors to ask themselves, “What would Michael Sussmann gain by lying to Mr. Baker? Nothing. What would he lose? Everything. He’d lose his credibility, his relationship with Baker, his security clearance, his livelihood. For what?” In short, “the government’s theory doesn’t make sense,” the defense told the jury.

What The Government Must Prove

On Tuesday, the trial began in earnest when the government began calling its witnesses. The court, however, first provided the jury with a few preliminary instructions, telling jurors:

The defendant, Michael Sussmann, is being tried on a single criminal charge: that he willfully and knowingly made a materially false, fictitious, and fraudulent statement or representation in a matter before the Federal Bureau of Investigation; namely, that Mr. Sussman stated to the general counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations, when, in fact, he was acting on behalf of two specific clients, namely Rodney Joffe and the Hillary Clinton Campaign. Mr. Sussman has pled not guilty to that charge.

While following the close of evidence the judge will provide detailed instructions about the facts the government must establish beyond a reasonable doubt for the jury to convict Sussmann, the court’s overview highlighted the necessary elements prosecutors must prove. Specifically, prosecutors must prove that Sussmann “knowingly” made a “false statement” that was “material” to the “FBI’s operations.”

To establish that the defendant made a false statement, the government must show both that Sussmann told Baker during their September 19, 2016, meeting that he was not representing a client and that Sussmann was in fact representing a client, either Joffe or the Clinton campaign or both. Last week, prosecutors presented strong evidence to establish both facts.

Facts On the Prosecution’s Side

First, Baker testified that he was “100 percent confident” that Sussmann had claimed during their September 19, 2016, meeting that he was not there “on behalf of any particular client.” Baker also told the jury that the evening before, in requesting the meeting via text, Sussmann wrote, “I’m coming on my own – not on behalf of a client or company. [W]ant to help the Bureau.” Prosecutors also admitted a copy of the text into evidence, allowing jurors to see the damning message themselves.

Baker also testified that after meeting with Sussmann he spoke with Bill Priestap, who at the time served as the assistant director of the FBI’s Counterintelligence Division, and Trisha Anderson, then the FBI’s deputy general counsel, telling them about his discussion with Sussmann.

Later today, Priestap and Anderson are scheduled to testify about notes they took at the time, with Priestap’s notes indicating Baker had said Sussmann was “not doing this for any client.” Anderson’s notes similarly showed Baker relaying that Sussmann had said: “No specific client.”

Last week, prosecutors also presented testimony and other evidence to show that while claiming he was not representing a “specific client,” in fact Sussmann was working on behalf of the Clinton campaign and Joffe. In questioning Marc Elias, who served as the lead Perkins Coie lawyer for the Clinton campaign, prosecutors elicited testimony that Elias had hired the investigative firm Fusion GPS to assist in opposition research against Trump. Elias later told jurors that he first learned of the supposed Alfa Bank-Trump secret communication channel from Sussmann.

Prosecutors further culled from their questioning of Elias a detailed explanation of billing records that showed Sussmann reporting time spent on a “confidential project” to the Clinton campaign around the time of Sussmann’s meeting with Baker. Elias also testified that to his knowledge, the Alfa Bank connection was the only project related to the Clinton campaign on which Sussmann was working at the time.

Moreover, while Elias claimed it was not in the Clinton campaign’s best interest for Sussmann to have provided the Alfa Bank “intel” to the FBI, Elias acknowledged that lawyers working for the Clinton campaign held great discretion in representing the 2016 candidate. Another prosecution witness, Deborah Fine, who served as “one of several deputy general counsels” for the Clinton campaign, likewise confirmed Fusion GPS, with whom Sussmann worked on the Alfa Bank hoax, had broad discretion to accomplish specific tasks.

Hillary Clinton Approved the Alfa Bank Operation

In addition to Elias and Fine, the special counsel also called to the stand Laura Seago, who during the 2016 campaign had worked for Fusion GPS. Seago testified about her work related to the opposition research undertaken on behalf of the Clinton campaign and specifically of a meeting she attended with Elias, Sussmann, and Joffe at which the Alfa Bank allegations were first discussed. Seago further told the jury that she understood the “Alfa Bank work was related to the broader project for Perkins Coie and the Democratic entity.”

Under questioning from prosecutors, both Elias and Mook confirmed the campaign pushed the Alfa Bank story to the press. Mook went one step further, testifying that Hillary Clinton had personally “agreed to” the decision to peddle the allegations of a secret communication channel between Trump and the Russian-based Alfa Bank to the media.

While much of the testimony to date has focused on the Clinton campaign and its involvement in pushing the Alfa Bank data, prosecutors also highlighted Joffe’s role to bolster the argument that when Sussmann met with Baker, he was also representing Joffe. Steve DeJong, an employee at the then-Joffe-connected tech giant Neustar, told the jury that Joffe had directed him to pull “DNS” data related to Trump and his associates.

Next week, when prosecutors call Georgia Tech researcher Dave Dagon to the stand, Joffe’s role in the Alfa Bank hoax will likely be further exposed. Dagon worked with Joffe and served as Fusion GPS’s press liaison to explain the complicated data.

What the Special Counsel Must Also Prove

Even if this testimony, and that set for next week, establishes that Sussmann represented the Clinton campaign and Joffe and thus lied to Baker, the special counsel must still prove the lie was “material.” To be material, the lie must be “capable of influencing a decision” of the government actor.

In questioning Baker, prosecutors elicited testimony to further the case that Sussmann’s lie mattered, with the former FBI general counsel stating “he would not have taken the private meeting with Sussmann if he knew Sussmann was working on behalf of the Clinton team.” Baker also told the jury he had “vouched for” Sussmann in passing on the Alfa Bank information, while treating Sussmann as a sensitive confidential human source and protecting his identity from other agents.

Prosecutors also elicited testimony from FBI Special Agent Scott Hellman to help build the case that Sussmann’s lie was material. Hellman, an expert in DNS data, testified that the Alfa Bank data did not support the conclusion of the whitepapers, calling the methodology used “questionable.” Hellman further explained that in assessing the data, knowing whether it came from someone with “a political affiliation or motivation” would affect the initial steps of an investigation.

On this latter point, Hellman told the jury he met roadblocks when trying to determine the origins of the data. “I do remember I was frustrated at not being able to ID who had provided these thumb drives to Mr. Baker. He was not willing to tell me,” Hellman testified last week. When coupled with Baker’s testimony that he would not have withheld Sussmann’s name had he known Sussmann was representing a client, prosecutors have already presented sufficient evidence of materiality, but more is likely to come this week.

If Sussmann Lied, Was It On Purpose?

That leaves the final element of proof, concerning Sussmann’s state of mind. Section 1001, which criminalizes false statements, requires that the defendant intentionally or knowingly make the false statement. In submitting proposed jury instructions to the court, the government and Sussmann agreed that jurors should be instructed that “an act is done knowingly if it is done purposely and voluntarily, as opposed to mistakenly or accidentally,” and that “an act is done willfully if it is done with an intention to do something the law forbids, that is, with a bad purpose to disobey the law.”

To prove Sussmann acted with the requisite intent, the special counsel will need to rely on circumstantial evidence presented to the jury, the strongest of which will be Sussmann’s billing records that show he billed his time related to Alfa Bank to the Clinton campaign. Prosecutors also presented testimony from two former CIA employees to bolster the conclusion that Sussmann knowingly lied to Baker.

The first CIA agent to testify, Mark Chadason, explained that in attempting to score a meeting with the CIA, Sussmann claimed he had a client who “was an engineer with a number of patents, and is most likely a contractor to the [intelligence community].” Conversely, when Sussmann met with another CIA agent, identified only as “Kevin P.,” Sussmann said “he was not there for a client.”

This week the government will likely admit as additional evidence of Sussmann’s state of mind his congressional testimony from 2017. During that congressional hearing, when asked about his meeting with Baker, “Sussmann testified he passed the information along on behalf of a client, who is a cybersecurity expert.” While Sussmann did not name Joffe as the client, the description matches the tech expert, and the other evidence of Sussmann’s representation of Joffe related to the Alfa Bank matter provides strong support to the claim that Sussmann knowingly lied to Baker.

The Defense Seeks to Confuse the Jury

Seeing the strength in this circumstantial evidence of Sussmann’s state of mind, his legal team is pushing for a “good faith defense” instruction which, while appropriate in some circumstances, appears proffered to confuse the jury. Specifically, Sussmann seeks an instruction stating, “the defendant’s conduct is not willful if it was the result of a good faith understanding that he was acting within the requirements of the law,” and that “this is so even if the statement is, in fact, erroneous.”

The court has yet to rule on whether to provide Sussmann’s proposed instruction on a “good faith” defense, but if presiding Judge Christopher Cooper accedes to the request, the defense will be able to misdirect the jury from the relevant facts of the case to its theme that Sussmann had a “genuine national security concern” about the Alfa Bank data and believed he had an obligation to share the information with the FBI.

But Sussmann is not on trial for sharing the data with the FBI. He’s on trial for lying to Baker when he did so. A good faith belief in the validity of the data is irrelevant to the question of whether Sussmann knowingly made a false statement to Baker on September 19, 2016. Under these circumstances, providing the requested instruction to the jury would only confuse the issue.

It will likely be at least another week, however, before the court resolves the jury instruction issues. In the meantime, the special counsel resumes today with its case-in-chief.