“There are sometimes close cases,” another Durham prosecutor, Andrew DeFilippis, told the jury. “This is not even close to a close case.”
Sussmann’s defense insisted that the former federal prosecutor had not lied to the FBI, but that Durham’s theory was absurd given Sussmann’s extensive interactions with the FBI on behalf of the Clinton campaign and the Democratic National Committee in connections with hacking of their emails.
“Mr Sussmann has HFA [Hillary for America] and DNC tattooed on his forehead. He’s dealing with them all the time,” defense attorney Sean Berkowitz told jurors. “Everybody knew who he was.”
Jurors began deliberating in the case shortly after 1 p.m. Friday, but U.S. District Court Judge Christopher Cooper said he expected no verdict will be returned before Tuesday due to holiday scheduling issues.
The two-week-long trial is the first courtroom test for Durham, who was tasked by then-Attorney General William Barr in 2019 with examining the origins of the FBI’s investigation into ties between Trump and Russia. Two months before the 2020 election, Barr upgraded Durham to special counsel status, which gives him greater autonomy and could complicate any effort to dismiss him.
Democrats have criticized Durham for using a peripheral alleged lie to publicly air a broader narrative that the Clinton campaign advanced false allegations against Trump, which mushroomed into special counsel Robert Mueller’s high-profile investigation and hamstrung Trump’s presidency.
Berkowitz said prosecutors’ intimations that Sussmann was up to something dastardly in trying to draw attention to the alleged server links were naive and, ultimately, irrelevant to the legal case.
“Opposition research is not illegal. If it were, the jails of Washington, D.C. would be teeming over,” the defense attorney said.
However, Durham’s team said Sussmann’s alleged lie amounted to an assault on the independence of the FBI.
“You can see what the motive was here: It was to create an October surprise,” DeFilippis said. “No one is entitled to weaponize a law enforcement agency in support of a political agenda. Not Democrats. Not Republicans.”
U.S. District Court Judge Christopher Cooper limited testimony and evidence at the trial about whether the secret server allegations Sussmann gave to the FBI had merit or not, although jurors have heard the FBI concluded they were unfounded. But prosecutors also have to show that Sussmann’s alleged lie was “material,” meaning it could have affected the FBI’s investigation in a significant way. The defense repeatedly scoffed at the FBI’s probe, arguing it was so cursory and left so many potential leads unexplored that whether Sussmann mentioned a client or not hardly mattered.
“It was shoddy. It was an embarrassment,” Berkowitz said of the FBI’s work.
The prosecution conceded that the FBI’s work wasn’t first class, but insisted those slip-ups were a distraction from the key issues in the case.
“They missed opportunities. They made mistakes,” DeFilippis said. “They even kept information from themselves … That is not relevant.”
Despite the prosecution’s claims that they’ve presented an airtight case against Sussmann, the evidence that the former federal prosecutor lied is almost entirely circumstantial.
The thrust of the argument from Durham’s team is that because Sussmann was deeply involved in Clinton campaign efforts to research and promote the Alfa Bank allegations, he must have been acting in that capacity when he went to FBI general counsel James Baker on Sept. 19, 2016.
During his closing argument, Algor pored over a slew of billing records from law firm Perkins Coie demonstrating that Sussmann had numerous meetings and calls in the summer of 2016 with a tech executive, Rodney Joffe, who promoted the server story. Sussmann also was in meetings with the Clinton campaign’s general counsel Marc Elias about what the billing records describe as a “confidential project.”
However, Sussmann’s attorneys have argued that despite his work on the server allegations and his contacts with the media, when he went to the FBI he was simply alerting the bureau to what he thought was a forthcoming New York Times article about the secret-server claims. FBI personnel testified that such a heads-up could have been helpful to the bureau in running down the alleged ties before the media drew attention to the issue.
For months, Sussmann’s defense has contended that the evidence of what their client said at the meeting with Baker is shaky, due to conflicting accounts the former FBI official has given and to discrepancies in notes other Justice Department officials made later about whether they thought Sussmann was or was not acting for a client.
However, in March of this year — six months after Durham’s team brought the indictment against Sussmann — Baker discovered a text message from the day before the September 2016 meeting. In it, Sussmann wrote almost exactly what Baker now contends Sussmann said at the one-on-one discussion in Baker’s office at FBI headquarters.
“I have something time-sensitive (and sensitive) I need to discuss,” Sussmann wrote. “I’m coming on my own — not on behalf of a client or company — want to help the Bureau.”
Algor gave major billing Friday to that text, which the prosecution did not have when it chose to bring the single false-statement charge against Sussmann.
“Ladies and gentlemen, the defendant used 42 words in that text message and 20 words of them was a lie,” Algor told jurors. “I want you to remember that text message that he sent to Mr. Baker.”
Berkowitz emphasized that his client isn’t charged with lying in the belatedly discovered text message, but only at the Sept. 19 meeting. “There’s no doubt that Mr. Sussmann sent this text … It’s a true statement, by the way. He sent that. We own that,” the defense attorney said. “That’s not what’s charged in this case.”
But the prosecution noted that Sussmann’s claim in the text that he was coming on his own is in conflict with testimony he gave to the House Intelligence Committee in December 2017, where he said, “I think it’s most accurate to say it was done on behalf of my client.”
“There’s no way to reconcile those statements,” DeFilippis said.
The defense attributed Sussmann’s House testimony to “confusion” and argued that the whole question of whether he was or was not acting “on behalf of” the Clinton campaign or other clients is so vague that it shouldn’t be the basis for a criminal charge.
“These are not necessarily precise terms,” Berkowitz said.
Elias, the Clinton campaign’s primary attorney, made a similar comment on the witness stand last week. “‘On behalf of’ is kind of like a subjective-intent thing,” he said.