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Durham prosecutors rest case against Clinton campaign lawyer Michael Sussmann after relitigating 2016 election drama

By Marshall Cohen

Prosecutors working for special counsel John Durham rested their case Wednesday against Hillary Clinton campaign lawyer Michael Sussmann after seven days of testimony that relitigated some of the most controversial moments of the 2016 presidential race.

Sussmann has pleaded not guilty to one count of lying to the FBI during a September 2016 meeting, where he passed along a tip about a potential communications backchannel between Donald Trump and a Kremlin-linked bank. He isn’t accused of inventing the tip, which the FBI later dismissed, but he was charged with lying about whether he brought the tip on Clinton’s behalf.

Sixteen witnesses testified as part of Durham’s seven-day case. Sussmann’s lawyers began their case Wednesday afternoon, and they haven’t ruled out that Sussmann might testify in his own defense. If Sussmann does take the stand, it will happen Thursday, his lawyer said.

Durham witnesses relive 2016

Durham’s case featured a parade of FBI officials, spanning from the novice case agent who handled the investigation, all the way up 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% confident” that Sussmann uttered the allegedly false statement that resulted in his indictment.

From the beginning, Judge Christopher Cooper of the DC District Court insisted that the case wouldn’t be overrun by its inescapable “political overtones.” His hopes were quickly dashed.

The jurors, including some who were politically active in 2016 to support Clinton, heard testimony about Russia’s cyberattacks against the Democratic National Committee, Trump’s infamous “Russia, if you’re listening” plea for more hacks and then-FBI Director James Comey’s explosive public announcements about the Clinton email investigation.

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

The witness, technology executive Jared Novick, said he was “extremely uncomfortable” when his business partner Rodney Joffe “tasked” him with using their company’s vast collection of internet data to hunt for links between these and other Trump associates and Russia. (Joffe separately worked with Sussmann on the tip that Sussmann gave to the FBI and to the press.)

But Cooper chided Durham’s team twice on Wednesday for ignoring the “guardrails” he established before the trial and going too far with some questions to witnesses. The judge expressed frustration that prosecutors asked a witness about Sussmann’s underlying tip potentially being faked, and brought up Joffe’s political associations with “no good-faith basis.”

Clash over billing records

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

His billing record from September 19, 2016 — the day he met Baker at FBI headquarters — was also introduced as evidence. Prosecutors alleged in their indictment that Sussmann “billed his meeting with the FBI… to the Clinton Campaign.” The jury learned Wednesday that Sussmann did bill Clinton that day, but only for “work and communications regarding confidential project.”

“There is 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 is not,” she said.

Bosworth highlighted expense reports showing that Sussmann didn’t bill the Clinton campaign for his taxis to and from the FBI building, but instead billed his law firm at the time, Perkins Coie. Bosworth also pointed out that when Sussmann previously met with FBI officials on behalf of other unrelated clients, he would usually explicitly put “meeting with FBI” in his billing records.

Prosecutors showed that Sussmann billed the campaign for USB thumb drives that he bought days before meeting Baker — when he handed over two thumb drives with cyber data about Trump.

Rookie led FBI’s Trump-Alfa probe

As prosecutors wrapped up their case, they zeroed in on the FBI investigation that was opened because of Sussmann’s tip that the Trump Organization was secretly contacting Alfa Bank, the largest private bank in Moscow. Two Chicago-based FBI agents described how they attempted to reconstruct the cyber data and concluded within four months that there wasn’t anything there.

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

These final Durham witnesses get at the “materiality” question that is essential to a conviction.

The 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 FBI’s work. The defense says Sussmann didn’t lie to conceal his political clients, but even if he did, it couldn’t have hampered the FBI because the bureau was already well aware of his Democratic ties.

Defense takes center stage

Sussmann’s lawyers called six witnesses Wednesday, including former Justice Department official Tashina Gauhar, who took notes that the defense believes is exculpatory.

The notes stemmed from a meeting in March 2017 where top FBI brass briefed Justice Department leadership about the ongoing Trump-Russia investigations. Gauhar’s notes said the FBI got information about Alfa Bank from an attorney who came “on behalf of his client,” which the defense claimed rebuts the allegation that Sussmann told the FBI he came on his own.

Two character witnesses also testified, describing Sussmann as a caring man and hard worker who has a strong moral compass after experiencing the tragic loss of his father in a hotel fire.

“He’s pretty instrumental in my life, said Jimma Elliott-Stevens, who was Sussmann’s assistant when he worked at the Justice Department, and is now general counsel at Thomson Reuters. “He’s always been someone whose integrity is beyond reproach. I know him as an honest, hardworking man of faith. So, I’ve never had any issues with his character or his integrity.”

The defense hoped to call journalist Eric Lichtblau, who worked 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 got in the way, and his lawyers confirmed to CNN that he won’t be testifying.

It’s unclear if Sussmann will testify, which would be a high-risk, high-reward move. He could counter Baker’s testimony by adamantly telling the jury that he didn’t lie, and he could also talk about his career as a cybersecurity lawyer who regularly helped the US government. But Durham’s team would get an equal opportunity to question him and would likely bring a grilling.

If Sussmann doesn’t testify, closing arguments could happen this week, paving the way for jury deliberations.

This story has been updated with additional details.

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