Durham prosecutors stay case against Clinton campaign lawyer Michael Sussmann

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Sussmann pleaded not guilty to one count of lying to the FBI during a September 2016 meeting in which he passed on a tip about a possible communication channel between Donald Trump and a bank linked to the Kremlin. He is not accused of inventing the tip, which the FBI later dismissed, but he was accused of lying about bringing the tip on Clinton’s behalf.

Sixteen witnesses testified in Durham’s seven-day case. Sussmann’s attorneys are now starting their case, and they haven’t ruled out that Sussmann may testify in his own defense.

The Durham case featured a parade of FBI officials, ranging from the rookie agent in charge of the investigation, to the FBI’s top lawyer at the time, James Baker. It was Baker who met with Sussmann to receive the tip, and he crucially testified that he was “100% satisfied” that Sussmann had made the alleged false statement that resulted in his indictment.

From the start, DC District Court Judge Christopher Cooper insisted the case would not be plagued by its inevitable “political overtones.” His hopes were quickly dashed.

Jurors, including some who were politically active in 2016 in support of Clinton, heard testimony about Russia’s cyberattacks on the Democratic National Committee, Trump’s infamous “Russia, if you listen” plea for more hacks and the explosive audience of FBI Director James Comey. announcements regarding the Clinton email investigation.

A witness was asked on Tuesday about other well-known figures in the Trump-Russia investigation, including George Papadopoulos and Carter Page, who worked for Trump’s campaign in 2016.

Witness, Chief Technology Officer Jared Novick, said he was “extremely uncomfortable” when his business partner Rodney Joffe “instructed” him to use their company’s vast collection of internet data to research links between these and other associates of Trump and Russia. (Joffe worked separately with Sussmann on the tip Sussmann gave to the FBI and the press.)

But Cooper chastised the Durham team on Wednesday for ignoring their “safeguards” and going overboard with a few questions to witnesses about whether Sussmann’s underlying tip was potentially rigged.

Dispute over billing records

Jurors saw Sussmann’s billing records, which showed how he billed the Clinton campaign for phone calls, meetings and other work related to the Trump-Russia allegation.

His billing file from September 19, 2016 – the day he met Baker at FBI headquarters – was also presented as evidence. Prosecutors alleged in their indictment that Sussmann “charged his meeting with the FBI…to the Clinton campaign.” The jury heard Wednesday that Sussmann had Clinton charged that day, but only for “work and communications relating to a confidential project.”

“There’s no reference to the FBI in that entry, is there?” defense attorney Michael Bosworth asked Durham paralegal Kori Arsenault, who was on the witness stand. “There isn’t,” she said.

Bosworth pointed to expense reports showing that Sussmann did not charge the Clinton campaign for taxis to and from the FBI building, but instead charged his then-law firm, Perkins Coie. Bosworth also pointed out that when Sussmann previously met with FBI officials on behalf of other independent clients, he usually explicitly marked “meeting with FBI” in his billing records.

A rookie led the FBI’s Trump-Alfa investigation

As prosecutors wrapped up their case, they focused on the FBI investigation that was opened because of Sussmann’s information that the Trump Organization was secretly contacting Alfa Bank, Moscow’s largest private bank. Two Chicago-based FBI agents described how they tried to piece together the cyber data and concluded within four months that there was nothing there.

“There was no evidence – from all the US companies we spoke to, the (internet) logs we looked at, as well as the (internal) report from the Alfa-Bank servers – there was no no evidence that this secret communication channel existed,” said former FBI agent Allison Sands, who led the investigation, even though she only had three months of total experience as an FBI agent.

These latest Durham witnesses address the issue of “materiality” that is essential to a conviction.

Prosecutors would need to convince the jury of a few key elements of the alleged crime, including that Sussmann lied and that the alleged lie had a real impact on the work of the FBI. The defense says Sussmann didn’t lie to cover up his political clients, but even if he did, it couldn’t have bothered the FBI because the bureau was already well aware of his Democratic ties.

Defense at the center of attention

Sussmann’s attorneys said they would call witnesses who can speak positively about his character and a former Justice Department official who took notes that could be exculpatory.

They were hoping to call journalist Eric Lichtblau, who was working for The New York Times in 2016 when Sussmann gave him the Trump-Alfa tip. But a dispute with prosecutors over the scope of his testimony has stood in the way, so he will not speak.

It’s unclear if Sussmann will speak, which would be a high-risk, high-reward move. He could counter Baker’s testimony by telling the jury emphatically that he didn’t lie, and he could also talk about his career as a cybersecurity lawyer who has regularly helped the US government. But the Durham team would have an equal chance of questioning him and would probably bring a grill.

If Sussmann does not testify, closing arguments could take place this week, clearing the way for jury deliberations.

This story has been updated with additional details.

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