A trial over whether a lawyer with ties to the Democratic Party lied to the FBI in 2016 is scheduled to begin Monday in what could be the first major test for John Durham, the special counsel appointed during the Trump administration to investigate the allegations of the former president to investigate a conspiracy to undermine his campaign.
Michael Sussmann, a former partner at law firm Perkins Coie, is accused of providing false information to the FBI’s top lawyer during the 2016 campaign when he gave the FBI data allegedly showing links between Trump and a Russian bank.
Durham’s office alleges that Sussmann, who was then representing Hillary Clinton’s campaign and was a cybersecurity researcher, falsely claimed he did not represent any particular client when he met with then-FBI General Counsel James Baker in September 2016.
The FBI examined Sussmann’s evidence — internet data allegedly showing a line of communication between the Trump Organization and Russia’s Alfa Bank — and found nothing to support the allegations.
The trial will focus on whether Sussmann lied when he said his clients did not initiate the tip-off to the FBI, and if so, whether that lie was material in that it influenced federal law enforcement’s investigations.
In the September indictment, prosecutors wrote: “Sussmann’s lie was material because Sussmann’s false testimony, among other things, misled the FBI’s General Counsel and other FBI employees as to the political nature of his work and deprived the FBI of information that it had to more comprehensively assess and uncover the provenance of relevant data and technical analysis, including the identity and motivation of Sussmann’s customers.”
Last month, prosecutors at the Office of the Special Counsel released a text message that Sussmann, a former federal prosecutor, sent to Baker the night before their meeting, in which he wrote: “I come alone — not on behalf of a client or company — to help the Bureau want.”
The new evidence is likely to bolster Durham’s prosecution in court, but legal experts say the case is far from a bull’s eye.
Jeff Robbins, a former federal attorney who now represents the subjects of the federal investigation in his private practice, says there are a number of hurdles the special counsel prosecutors must overcome in the trial, including convincing the jury that the FBI investigation was significantly influenced by Sussmann, supposedly concealing the political nature of his work.
Robbins added that Sussmann and his firm’s known ties to the Democrats could make it difficult for prosecutors to argue that the FBI was misled into believing the attorney was offering information unrelated to the politics of the 2016 presidential campaign were influenced.
“One question to work with if you’re the defense is why would a former federal prosecutor lie to the FBI and make a statement that is so clearly false — if you believe the prosecution’s version of what he said — if it were at least serious doubts with a second of googling his law firm? said Robbins.
“It’s almost impossible to believe that the FBI’s General Counsel believed that an associate of Perkins Coie had absolutely no connection to the Clinton campaign or the Democratic Party, even though they were known to represent them,” he added.
Sussmann’s defense team claims he has committed no wrongdoing and has signaled it will bring into the process hundreds of internal FBI emails showing the bureau knew its political clients well.
The case of the political implications is sure to loom over the case over the next two weeks.
Trump’s Attorney General William Barr tapped Durham back in 2019 to probe the origins of the FBI’s probe into alleged ties between the Trump campaign and Russia. Barr appointed Durham as special counsel in October 2020, allowing him to continue the investigation when the Biden administration began.
Trump’s opponents have slammed Durham’s investigation as a politically motivated attempt to bolster the former president’s claims that his 2016 campaign was being pursued by a “deep state” conspiracy by Democratic officials and law enforcement to tarnish it with unsubstantiated claims of Russian collusion.
The Durham investigation appears to be ongoing and has taken longer than Robert Mueller’s own special counsel investigation. Sussmann is one of three defendants charged as part of the investigation and is the first to stand trial.
The stakes will be high for both Sussmann, who faces a maximum possible sentence of eight years if convicted, and Durham’s investigation.
“I think if he loses this case, it’s going to be a huge blow to his reputation and the company,” Robbins said.
And the decision to charge Sussmann had already raised eyebrows among legal commentators because it was an in-person meeting that was unrecorded and had no other witnesses.
Gene Rossi, who served as a federal prosecutor for nearly 30 years, said the indictment is questionable in part because it risks pitting one person’s account of a private meeting against another.
“You have no audio. You have no video. They don’t have concurrent notes. They just got Michael Sussmann versus Baker at a September 2016 meeting. That’s not a strong case,” Rossi said. “They are going on trial for something that was said almost six years ago.”
But he added that there is a way for Durham’s prosecutors to construct a narrative of political deception in court that a jury might find compelling.
“When you have a jury trial, nothing is ever guaranteed, so neither side should feel confident going into that trial,” Rossi said.