Special Counsel John Durham has charged Sussmann with falsely telling the bureau he had brought the Alfa Bank tip in his personal capacity, not on behalf of any of his clients — potentially affecting the FBI’s handling of the tip. But Sussmann’s defense team has emphasized that the bureau was well aware of Sussmann’s ties to the Democratic Party and that the circumstances of the tip were irrelevant to FBI’s decision to pursue it and ultimately deem it unsubstantiated.
The ongoing trial is the first courtroom test of Durham’s long-running investigation into the origins of the FBI’s Trump-Russia investigation, and he’s used the Sussmann prosecution to publicly disclose a broad swath of his case. Sussmann’s team, though, has cast doubt on the allegations, describing them as a desperate effort to shoehorn salacious and misleading evidence into the public record. So far, Sussmann’s trial has featured testimony from a series of high-profile witnesses, including Democratic Party attorney Marc Elias, former Clinton campaign manager Robby Mook and former senior FBI officials.
Despite Pientka’s messages, other witnesses described the bureau’s reaction to the Alfa Bank tip as relatively modest — a limited offshoot of a much broader and more urgent investigation of Russia’s interference in the 2016 election, and any evidence of the Trump campaign’s involvement.
Indeed, current and former FBI witnesses seemed to have hazy memories of aspects of the Alfa Bank episode and indicated their recollections were heavily influenced by notes, emails and messages they exchanged at the time, which have been unearthed by Durham’s team.
Bill Priestap, who led the FBI’s counterintelligence division in 2016, said he recalled regular briefings about the broader Trump-Russia investigation, known as Crossfire Hurricane, but that he didn’t recall similar briefings on Alfa Bank.
“It was not something I was regularly briefed on and if I recall correctly, at the end of the day, it didn’t amount to much,” said Priestap, who is now retired from the law enforcement agency.
Asked about Pientka’s assessment that the leadership was “fired up,” Priestap said he didn’t recall that reaction from FBI leadership or from FBI Director James Comey, specifically.
Perhaps more significantly, the description of the FBI’s handling of the Alfa Bank tip allowed Sussmann’s attorneys to remind the jury about the significant alarm within the bureau about connections between the Trump campaign and Russia, which were the subject of FBI and special counsel investigations for nearly three years.
Jurors saw an internal FBI intelligence report Monday that indicated the FBI viewed Alfa Bank as closely connected to Putin.
“As of 1998, Putin was on Afla Bank’s payroll,” the report said, in addition to detailing other alleged links between the bank, its owners and Putin.
Witnesses at Sussmann’s trial continued to provide murky accounts of how FBI personnel were told to handle the issue of the DNC-connected cybersecurity lawyer when pursuing the allegations he had relayed.
Agent Ryan Gaynor said he was told that Sussmann’s identity was considered “close-hold” but he did not recall being told why.
“If I was given any reason at the time, I do not remember what that was,” Gaynor said.
Former FBI General Counsel James Baker testified last week that while he didn’t widely share the details of Sussmann’s role with others at the FBI he did tell Priestap, who wrote it down. Baker said he didn’t recall refusing to disclose the name to others at the FBI.
Heide and other agents in Chicago seeking to verify the claims asked if they could be told who provided the data and accompanying analytical white papers to the bureau.
“We really want to interview the source of this information. Any way we can track down who this guy is and how we’re getting this information?” Heide wrote to Gaynor on Oct. 3, 2016.
Testifying for the prosecution, Gaynor said he felt that revealing the source wasn’t necessary at that point because agents were still trying to trace the alleged data links. He said they were ultimately determined to be spam email messages sent by a marketing server.
The FBI did reach out “discreetly” to a cybersecurity firm, Mandiant, and learned that company looked into the allegations and found them to be without merit, Gaynor said. However, he testified that the FBI avoided other steps like interviewing outside technology experts because they feared that doing so would lead to reports, just prior to the presidential election, that the FBI was investigating the issue.
“The decision was made that doing an overt interview so close to the election could inadvertently impact the election,” Gaynor said. “I believed that in a politically-charged environment that the ones and zeroes would answer the question of whether or not there was a national security threat.”
Gaynor said officials also had concerns that the FBI openly investigating might also discourage those who brought the matter to the FBI from going to the media.
“We’re not supposed to engage in overt activities that could be interpreted to be dissuading people from engaging in First Amendment-protected speech,” he said.
Sussmann’s defense also spent considerable effort raising questions about Gaynor’s credibility, questioning his memory about the events in question.
Defense attorney Michael Bosworth suggested that Gaynor’s memory had evolved over time, particularly about the central issue in the case: whether Sussmann said he was bringing the so-called secret server allegations forward independent of the Clinton campaign or the DNC. Gaynor said he remembers having the impression during another conversation at the FBI in 2016 that the server information came from a lawyer who worked for the DNC but said he was bringing forward the information on his own.
Bosworth said the records of Gaynor’s interviews by Durham’s team and of his grand jury testimony show Gaynor never mentioned that until he was in a meeting with prosecutors ten days ago.
“I don’t believe that came up in an interview,” Gaynor acknowledged.
“Never once?” Bosworth asked skeptically.
“Correct,” said Gaynor.
As the trial entered its second week Monday, a dispute is also brewing over potential testimony by former New York Times reporter Eric Lichtblau. Witnesses have heard that the FBI sought to slow down a story Lichtblau was working on in the fall of 2016 about the alleged server links.
Sussmann’s defense wants to call Lichtblau and has waived confidentiality of any discussions Sussmann had with the journalist.
The defense has agreed not to delve into other matters, but Durham’s prosecutors are not party to that agreement and are arguing that they should be permitted to question Lichtblau about the full range of his reporting on the issue, including his interactions with other sources or experts such as a private investigation firm that looked into the subject for the Democrats, Fusion GPS.
“We think it’s fair game to probe Mr. Lichtblau on the exact substance of that,” Assistant Special Counsel Andrew DeFilippis told Judge Christopher Cooper before the jury was brought into the courtroom Monday. “These communications are highly probative.”
Lichtblau’s attorneys have argued that his testimony should be limited to his interactions with Sussmann.
Cooper signaled doubts Monday about whether prosecutors had done all they could to obtain such information or testimony without getting it from the reporter.
After DeFilippis noted that some of the people involved declined to speak with prosecutors, Cooper noted that the government could have forced them to do so by getting orders guaranteeing that their testimony wouldn’t be held against them.
“You could’ve immunized them,” the judge said.