WASHINGTON—Prosecutors and defense lawyers agreed on one point on May 27—that former Hillary Clinton campaign lawyer Michael Sussmann told the FBI he was not bringing claims about Donald Trump on behalf of the client—but diverged on whether the statement was a lie and whether it was repeated.
Sussmann, of Perkins Coie, texted then-FBI lawyer James Baker on Sept. 18, 2016. He said he had something “time sensitive (and sensitive) to discuss,” and that he was not coming forward on behalf of a client.
The next day, Sussmann met with Baker at FBI headquarters in Washington. During the meeting, Sussmann handed over three white papers and two thumb drives that allegedly showed Donald Trump—with whom Clinton was vying for the presidency—had a secret communications channel with Russia.
The information set off an FBI investigation and, later, a CIA probe, both of which concluded the allegations were unsubstantiated.
Sussmann was charged with lying to the FBI, a charge that carries up to five years in jail.
What Sussman did was, as “a serious national security lawyer,” deliver “what he thought to be credible data” to the FBI “to give them a heads up,” Sean Berkowitz, a lawyer for Sussmann, said during closing arguments.
“It wasn’t about national security,” said Jonathan Algor, a prosecutor with special counsel John Durham’s team. “It was about promoting opposition research against the opposition candidate Donald Trump.”
What Happened During the Meeting?
Only Sussmann and Baker were in the Sept. 19, 2016, meeting, which lasted about 30 minutes. Baker has said he took no notes. Therefore, prosecutors relied on Baker to testify as to what Sussmann said.
Baker testified that Sussmann repeated what he’d said over text—that he wasn’t bringing the information on behalf of a client.
“He said that he was not appearing before me on behalf of any particular clients and that he had information of concern regarding a surreptitious communication channel between Alfa Bank and some servers in the United States,” said Baker, who met Sussmann while both worked for the government, and who has described Sussmann as a friend. “I’m 100 percent confident that he said that.”
Algor told jurors that Sussmann hid his ties to the Clinton campaign and Rodney Joffe, a technology executive and a confidential FBI source who has said he was promised a position in a Clinton administration, to make sure the FBI investigated the Trump-Russia claims.
Prosecutors also cited notes taken by Bill Priestap and Trisha Anderson, two FBI officials, of conversations they had with Baker shortly after Sussmann left. Both sets of notes state that Baker’s source said he was not coming on behalf of any clients.
Berkowitz told jurors that the defense does not dispute the authenticity of the text message. But Baker may not be accurately recalling the meeting the next day, Berkowitz said, pointing to how Baker said in 2018 that he did not specifically remember Sussmann saying he was not acting on behalf of a client.
Baker said during the trial he was “100 percent sure” that Sussmann did say that.
Berkowitz claimed it was “highly unlikely” that his client repeated the statement from the text in the meeting, and said the government had not proven beyond a reasonable doubt that he did.
He pointed to notes from a 2017 Department of Justice meeting which said that the source for the Trump-Russia claims was a lawyer acting on behalf of a client.
The statement itself wasn’t material, Berkowitz also claimed. He said that the allegations stemmed from a cyber expert, Joffe, and that they were brought in by a respected national security lawyer, Sussmann. Even if the source and representation had been made clear, the allegations would have been taken seriously, he said.
Baker testified that if he knew Sussmann was representing the Clinton campaign, he would have not met with Sussmann alone, or at all.
Sussmann took the same information, and additional data, to a second government agency in 2017.
CIA records showed that Sussmann told a retired agent he had information from a client but during a subsequent meeting with actual agents, Sussmann said he was not representing a client.
Berkowitz focused on the first part while prosecutors zeroed in on what was said during the meeting.
Billing Records
Algor, the prosecutor, brought the jury’s attention back to the billing records from Sussmann, showing he purchased flash drives on Sept. 13, 2016, from a Staples around the corner from his office. The charge was billed to Clinton’s campaign.
The government also introduced records showing Sussmann billed 0.4 hours to the campaign for a meeting with Marc Elias, the campaign’s counsel, “regarding server issue” on July 31, 2016; 4.4 hours for a set of meetings with Elias and others described as involving “revisions to white paper” on Sept. 6, 2016; 6.6 hours for multiple meetings “regarding confidential project” and for drafting a “white paper” on Sept. 14, 2016; and 3.3 hours for “work and communications regarding confidential project” on Sept. 19, 2016.
“The defendant is working the Alfa allegations and billing it to the Clinton campaign,” Algor said. “You heard the defense make the argument that the defendant was working for the Clinton campaign and everyone knew it but when he went into that meeting, he stepped out of that role, he was no longer representing Rodney Joffe or the Clinton campaign, he was doing it as a good citizen. But look at how the defendant bills his time.”
Clinton campaign officials insisted during testimony that they did not approve of Sussmann going to the FBI, and Berkowitz cast doubt on the records, noting that Sussmann had not billed for a “meeting with FBI” for the meeting with Baker.
The records showed Sussmann worked for the Clinton campaign on spreading the claims to the media, not to the FBI, Berkowitz alleged. “No one from the campaign asked him to go or authorized him to go and it wasn’t in their interest,” he said.
He also said there would have been little benefit for Joffe from Sussmann going on his behalf to the FBI.
Joffe, who did not testify, separately went to an FBI friend and told him of some of the information that prosecutors say Sussmann passed to Baker on behalf of Joffe and the Clinton campaign, it was revealed during the trial. Joffe was axed by the bureau as a source in 2021, apparently due to how he acted regarding the Trump-Russia claims.
Berkowitz later brought up how Sussmann told members of Congress in 2017 that he went to Baker on behalf of a client, but alleged the testimony was taken out of context.
Prosecutors said the billing records were “damning evidence,” noting that the thumb drives weren’t billed to the campaign until three days after Sussmann handed over the information to the FBI.
Some cases are close calls, and this was one of them, according to Andrew DeFilippis, part of Durham’s team.
“This is not a close case. You do have proof beyond reasonable doubt,” he said.
Verdict Not Until Next Week
Jurors began deliberating on Friday but even if they came to a quick decision, the verdict won’t be made public until next week.
U.S. District Judge Christopher Cooper, the Obama appointee overseeing the case, said that jurors should consider the verdict until 5 p.m.
If they don’t reach a verdict, they will reconvene on Tuesday, after the Memorial Day weekend.
Even if they do reach one, it will be “held” until next week, Cooper said.
That’s because the judge wants to be the judge to take whatever verdict is reached, but he was leaving the courtroom as jurors deliberated. He has said repeatedly he had weekend plans he would not put off.
From The Epoch Times