A prominent Democratic lawyer tried to “use the FBI as a political tool” when he met with the bureau’s chief counsel about an alleged connection between a Russian bank and Donald Trump while hiding that he was doing so on behalf of Hillary Clinton’s 2016 presidential campaign, a prosecutor for special counsel John Durham told a Washington, D.C., jury on Tuesday.
The claim about the actions of D.C. lawyer Michael Sussmann — which was strongly challenged by the defense — came on the opening day of a closely watched trial that represents the first key test of Durham’s controversial three-year-long probe into the origins of the FBI’s investigation into Trump’s ties to Russia.
“The evidence will show that this is a case about privilege — the privilege of a well-connected D.C. lawyer with access to the highest levels of the FBI,” Brittain Shaw, one of Durham’s prosecutors, told the jury during opening statements.
Sussmann is charged with one count of lying to the FBI when he approached James Baker, then the FBI’s general counsel, in September 2016 and told him he was not acting on behalf of any client while bringing him data that purported to show secret computer messages being exchanged between the Alfa Bank, a major Russian financial institution owned by oligarchs close to Vladimir Putin, and the Trump Organization.
In fact, prosecutors say, Sussmann, then a partner at the Perkins Coie law firm, was representing Clinton’s campaign and Rodney Joffe, a cybersecurity researcher and longtime client who was allegedly seeking a top job in a potential Clinton administration.
But defense lawyer Michael Bosworth fired back at the prosecutors, telling the jury that Durham’s team had stitched together a narrative that didn’t make sense.
“This case is an injustice, and I suspect when all the evidence is in, you will agree,” Bosworth told the jury.
Sussmann “didn’t lie to the FBI and wouldn’t lie to the FBI,” Bosworth said. Sussmann was a serious national security lawyer with a top-secret security clearance for over two decades who approached Baker out of concern for national security, he argued.
Sussmann approached Baker after Joffe brought him information about the alleged contacts between the Trump Organization and the Russian bank, according to Bosworth. Believing the New York Times was about to run a story about the purported communications, Sussmann reached out to the FBI to “give them a heads-up that the story was coming so they wouldn’t be caught flat-footed,” he said.
Bosworth said his client’s meeting with the FBI “was the exact opposite of what the Clinton campaign would have wanted. No one told him to go. No one authorized him to go.” Moreover, Bosworth said, the FBI subsequently contacted the New York Times asking it to hold the story, which resulted in the newspaper’s story being “shut down.”
But Shaw, the prosecutor, argued that the real purpose of the meeting was to gin up an FBI investigation that would give more traction to media stories about Trump-Russia ties, an effort she described as an attempt to create an “October surprise” for the Clinton campaign.
In fact, the FBI appears to have given little credence to the claims about a computer link between the Alfa Bank and Trump’s business. Taking the witness stand, FBI agent Scott Hellman, who with another agent analyzed the Alfa Bank data supplied by Sussmann for an FBI cybercrime squad, told the court that the bureau did not agree that this data represented material that passed through a secret channel between the Trump Organization and Russia.
The methodology that the people who supplied the data to Sussmann used to analyze it “was questionable,” Hellman said. It “just didn’t make sense” to FBI investigators that a supposedly secret communications channel between the Trump Organization and Russia would be engaging with computers directly and openly linked to Trump, he said.
A counterintelligence unit in the FBI Chicago office also investigated the data, he said, and reached the same conclusion.
Durham was initially appointed to look into the origins of the Trump-Russia investigation by then-Attorney General William Barr after the conclusion of special counsel Robert Mueller’s probe. Mueller ultimately found multiple contacts between members of Trump’s campaign and Russian operatives but no criminal conspiracy among the parties.
That has prompted Trump allies to argue that the entire FBI investigation into Trump was a political dirty trick, and they’ve looked to Durham to vindicate their claims, making his investigation a lightning rod in the rough-and-tumble political culture of Washington. However, contrary to the hopes of Trump’s allies that Durham would find criminal wrongdoing by the bureau, his first case at trial presents the FBI as a victim, not a perpetrator.