A lawyer for Hillary Clinton's 2016 presidential campaign hid his partisan interests from the FBI as he pushed “pure opposition research” related to Donald Trump and Russia in the weeks before the election, a prosecutor asserted Friday during closing arguments of the attorney's trial.
But Michael Sussmann's legal team denied prosecutors’ claims that he lied. And even if jurors believed Sussmann did lie, the defense said the alleged false statement did not matter because he was presenting national security information that the FBI would have looked into no matter the source. At the time of Sussmann's meeting in September 2016, the bureau was already investigating whether Russia and the Trump campaign were colluding to sway the election won by Trump that November.
“They wouldn’t have done anything different. And it makes sense: They were given actual data that had national security implications," Sussmann lawyer Sean Berkowitz said.
The case is the first courtroom test of special counsel John Durham's work since his appointment three years ago to search for government misconduct during the investigation into potential ties between Russia and Trump’s campaign.
A guilty verdict would be cheered by Trump and his supporters, who have looked to the Durham investigation to undercut the original Trump-Russia probe that have long seen as politically motivated. But the case against Sussmann is narrow in nature, involves a peripheral aspect of that probe and alleges misconduct by a tipster to the government rather than by anyone at the FBI.
Nonetheless, the two weeks of testimony in federal court in Washington have exposed the extent to which Democratic interests, opposition research, the media and law enforcement all came to be entangled in the run-up to the presidential election.
“It wasn’t about national security,” Jonathan Algor, a prosecutor on Durham’s team, said of Sussmann's concerns. “It was about promoting opposition research against the opposition candidate, Donald Trump.”
Sussmann is charged with a single count of making a false statement. That charge carries a maximum five-year prison sentence, though if convicted, Sussmann is likely to get far less — if any — prison time. He did not take the stand during the trial.
The criminal case turns on a Sept. 19, 2016 meeting in which Sussmann presented the FBI's top lawyer, James Baker, with computer data that Sussmann said suggested a secret communications back channel between a Russia-based bank and the Trump Organization, the candidate's company.
Such a back channel, if it existed, would have been explosive information at a time when the FBI was examining links between Trump and Russia. But after assessing the data, the FBI quickly determined that there was no suspicious contact at all.
Prosecutors say Sussmann lied to Baker by saying he was not participating in the meeting on behalf of a particular client. They say he was actually there on behalf of the Clinton campaign and another client, a technology executive whom the Durham team says tasked researchers with looking for internet traffic involving Trump aides and Russia.
Sussmann lied about his clients, prosecutors allege, to give the material extra credibility and because he figured that the information would not be investigated if the FBI thought it was being pushed by the Clinton campaign.
“The defendant knew he had to hide his clients if there was any chance of getting his allegations into the FBI — and that, ladies and gentlemen, is why the defendant lied,” Algor said.
Algor said the fact that Sussmann repeatedly billed the Clinton campaign for his work on the Alfa Bank matters is proof that he was acting on the campaign's behalf when he met with the FBI. But Berkowitz noted that Sussmann billed his taxi ride to FBI headquarters for the meeting to his law firm, rather than the campaign.
Berkowitz also tried to cast doubt on what exactly was said in the meeting. Prosecutors showed jurors a text message Sussmann sent Baker the night before the meeting in which he requested a sit-down on a sensitive matter and said he would be coming by himself and not on behalf of a client.
But Berkowitz reminded jurors that the only false statement that was charged took place during the following day's meeting and that no one can be sure exactly what was said because Baker and Sussmann were the only participants and neither took notes.
Berkowitz also suggested that it was technically accurate if Sussmann suggested he was not acting on behalf of a client because he never asked the FBI do anything with the information he was providing.
“When you go somewhere on behalf of a client, you’re advocating for a client, you’re asking for something,” Berkowitz said. “Mr. Sussmann didn't ask Jim Baker for anything.”
Though Baker testified under questioning from a prosecutor that he was “100% confident” that Sussmann had told him that he was not acting on behalf of a client, Berkowitz cited 116 instances in which Baker suggested that he could not recall or remember the answer.