“This is a case about privilege … 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,” Shaw said in her opening statement in U.S. District Court. “The defendant lied to direct the power and resources of the FBI to his own ends and to serve the agendas of his clients.”
Shaw said Sussmann and the Clinton campaign hoped that the FBI would jump on Sussmann’s report and launch an investigation that would embarrass Trump as voters prepared to go to the polls.
“It was a plan to create an October Surprise on the eve of the presidential election — a plan that used and manipulated the FBI ……a plan that largely succeeded,” Shaw declared.
However, Sussmann’s defense said their client never misled the FBI and that the false-statement case against the former federal prosecutor is riddled with fatal flaws.
“Michael Sussmann didn’t lie to the FBI. Michael Sussmann wouldn’t lie to the FBI,” defense lawyer Michael Bosworth said in his opening. “This case is an injustice.”
The single felony charge against Sussmann stems from a meeting he held with Baker in September 2016 to convey data and written reports about alleged internet links between servers apparently linked to Trump and those of a Russian bank, called Alfa Bank, which was owned by businessmen close to Russian President Vladimir Putin. The so-called Domain Name System or DNS lookup data appeared to signal that one or more computers at the Trump building were in regular contact with Alfa Bank. However, the FBI eventually determined that the apparent links were caused by an internet advertising server sending out what many would consider spam email messages, Shaw said.
The political overtones in this case are significant. Many Clinton allies believe Durham’s team is on a political errand to target a political ally of the two-time presidential candidate, former secretary of State and first lady. However, Durham himself is a veteran career prosecutor and former U.S. Attorney who has been tapped under both Democratic and Republican administrations to handle highly-sensitive investigations. He was in the courtroom as the trial kicked off Tuesday.
Durham’s prosecutors likely face an uphill battle to persuade jurors in overwhelmingly Democratic Washington, D.C., to convict a defendant who appears to have been on the same side as Clinton and was clearly on the opposite side of Trump. Cooper stressed to many jurors during the jury selection process that neither Clinton nor Trump are on trial here.
In her opening statement to the 16 jurors and alternates, Shaw called politics “the elephant in the room” and urged jurors to set those issues aside. “We are here because the FBI is our institution. It should not be used as a political tool for anyone … Whatever your political views might be they can’t be brought to the decision that you will be asked to make in this courtroom,” she said.
Bosworth acknowledged that Sussmann worked for the Democratic National Committee and for the Clinton campaign, but said those were pointless things for Sussmann to have lied about since the FBI knew he was a Democratic Party lawyer. But Sussmann’s defense insisted Tuesday that he was not actually acting for the campaign when he went to the FBI. Instead, Bosworth said, Sussmann was seeking to alert the law enforcement agency about a looming New York Times story that could make it harder for the FBI to investigate. The FBI later asked the Times to hold the story, the defense attorney said, something that amounted to a setback to the campaign.
“The meeting with the FBI was the exact opposite of what the Clinton campaign would have wanted,” Bosworth said. “The FBI meeting was something that they didn’t authorize, that they didn’t direct him to do, that they wouldn’t have wanted him to do.”
Prosecutors have contended that some of the internet researchers who gathered the data harbored serious doubts about its significance. It’s unclear whether any of those doubts reached Sussmann. In advance of the trial, Judge Christopher Cooper ruled that the accuracy of the data would not be contested in front of the jury to avoid an intensely technical debate that could divert the trial.
But an FBI cybersecurity agent who was among the government’s first witnesses Tuesday said he and his fellow agents were deeply suspect of the information almost immediately after they received it from FBI headquarters the day after Sussmann met with Baker.
During testimony by Special Agent Scott Hellman, jurors saw an instant-message he sent to a colleague soon after getting a so-called white paper Sussmann relayed postulating a tie between the Trump server and the Russian bank.
“It feels a little 5150 ish,” Hellman wrote, alluding to a California statute used to hold mentally ill people in protective custody.
Asked by the defense what he meant, the agent replied: “Perhaps the person who drafted this was suffering from some mental disability.”
“The methodology they chose was questionable to me,” Hellman said earlier, during questioning by the prosecution. “I did not feel they were objective in the conclusions that they came to. The assumptions you would have to make were so far reaching it just didn’t make any sense.”
Hellman also said he doubted that if Trump wanted to communicate secretly with Russia he would use a server whose digital address included his name. “That just didn’t make sense to us.”
The testimony from Hellman could cut both ways. He said his unit concluded in less than a day that the information Sussmann relayed seemed to be meritless. That could suggest to jurors that Sussmann was involved in a political effort to bamboozle the FBI that might have led him to lie about whether he was or wasn’t acting for a client when he met Baker. But the very flimsiness of the data also undermines the prosecution’s assertion that any misstatement by Sussmann could have been expected to impact the FBI’s work, since evident nonsense would likely be discarded by the agency no matter where it came from.
At various points Tuesday, Sussmann’s defense hammered away on the point that if the ultimate source of the data or the identity of Baker’s client was valuable information, someone at the FBI could have asked him.
“Judge the FBI by what they did and not what they’re saying now,” Bosworth said emphatically to the jury during his opening statement.
Hellman said he tried to ascertain where the report and the accompanying thumb drives came from, but Baker would not say and others said simply it was a “sensitive” or “anonymous” source. The agent said he was upset he wasn’t told.
“It was troubling,” Hellman said.
However, Bosworth noted that Hellman got an instant message from a colleague referring to a “DNC report.” The defense attorney suggested that meant someone in Hellman’s Cyber Division unit knew or thought the material was connected to the Democratic National Committee, but Hellman said he had no recollection of seeing that message.
The prosecution and defense narratives diverged in a variety of ways Tuesday. Shaw said Sussmann went to the FBI because he was frustrated with delays in publishing a story the New York Times had been working on and that he hoped the FBI about the suspicions would get the article out quicker. But Bosworth said Sussmann was giving an agency he had long cooperated with a heads-up on information he expected would soon be public.
The data in question and the white paper originated from a collaboration between an internet executive, Rodney Joffe, and a researcher at Georgia Tech, Manos Antonakakis. The defense asked Cooper to order immunity for Joffe so he could serve as a defense witness, but the judge declined. Prosecutor Andrew DeFilippis said as court got underway Tuesday that Antonakakis had been expected to be a prosecution witness but has indicated he will assert his Fifth Amendment right not to testify.
The trial’s first day of arguments and witnesses also laid bare some details about the witnesses and agencies involved. Shaw indicated in a question that while Joffe was a confidential human source for the FBI on other matters, he was terminated from that status in 2021. Defense attorney Sean Berkowitz said it was because of Durham’s probe.
And Hellman said relations between the FBI’s Cyber Division and the Counterintelligence Division were very strained in 2016, when the information from Sussmann was parsed by both branches. The tension was due in part to proposals that the cyber team be folded into the counterintelligence group.
“There were many, many disagreements,” Hellman said.