WASHINGTON — When the Trump administration assigned a prosecutor in 2019 to scour the Russia investigation for any wrongdoing, President Trump stoked expectations among his supporters that the inquiry would find a “deep state” conspiracy against him.
Three years later, the team led by the special counsel, John Durham, on Monday will open the first trial in a case their investigation developed, bringing before a jury the claims and counterclaims that surrounded the 2016 presidential campaign. But rather than showing wrongdoing by the FBI, it is a case that portrays the bureau as a victim.
The trial centers on whether Michael Sussmann, a cybersecurity lawyer with ties to Democrats, lied to the FBI in September 2016 when he relayed suspicions about possible cyber connections between Trump and Russia. The FBI looked into the matter, which involved a server for the Kremlin-linked Alfa Bank, and decided it was unsubstantiated.
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In setting up the meeting, Sussmann had told an FBI official that he was not acting on behalf of any client. Prosecutors contend he concealed that a technology executive and the Hillary Rodham Clinton campaign were his clients to make the allegations seem more credible.
The defense argues that Sussmann was not acting on their behalf at the meeting. The FBI was aware that he had represented Democrats on matters related to Russia’s hacking of their servers, and subsequent communications made clear that he also had a client who had played a role in developing the data analysis concerning Alfa Bank, his lawyers say.
Although the charge against Sussmann is narrow, Durham has used it to release large amounts of information to insinuate that there was a broad conspiracy involving the Clinton campaign to essentially frame Trump for colluding with Russia.
That insinuation also hangs over the other case Durham has developed, which is set to go to trial later this year. It accuses a researcher for the so-called Steele dossier — a since-discredited compendium of opposition research about purported links between Trump and Russia — of lying to the FBI about some of his sources.
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Both cases have connections with the law firm Perkins Coie, where Sussmann worked then. One of his partners, Marc Elias, was the general counsel of the Clinton campaign and had commissioned opposition research that led to the Steele dossier.
The Alfa Bank allegations and the Steele dossier were largely tangential to the official investigation into whether there was collusion between Russia and the Trump campaign. FBI officials had opened that investigation on other grounds, and the special counsel who completed the inquiry, Robert Mueller, did not rely on either in his final report.
(His report detailed “numerous links between the Russian government and the Trump campaign,” but he did not charge any Trump associate with a criminal conspiracy with Russia.)
But supporters of Trump have rallied around Durham’s narrative, which resonates with Trump’s oft-repeated claim that the entire Russia investigation was a “hoax.”
Defense lawyers for Sussmann have also rejected prosecutors’ broader insinuations about the constellation of events that led to his indictment, accusing the Durham team of fueling politicized conspiracy theories.
Against that backdrop, much of the pretrial jostling has centered on how far afield prosecutors may roam from the core accusation. Judge Christopher Cooper of the US District Court for the District of Columbia, a President Obama appointee, has imposed some limits on what Durham’s team may present to the jury.
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Through his court filings, Durham and his team have signaled they suspect that the Alfa Bank data or analysis may have been faked, even though they were unable to prove it.
But the judge barred Durham from presenting evidence or arguments along those lines, saying that unless there was proof Sussmann had reason to doubt the data when it was brought to him, there should not be “a time-consuming and largely unnecessary mini-trial to determine the existence and scope of an uncharged conspiracy.”
Still, the judge has given prosecutors broader latitude to call witnesses associated with the Clinton campaign, including Elias and campaign manager Robby Mook.
The Alfa Bank issue traces back to the spring of 2016 when it came to light that Russia had hacked Democrats.
That summer, as suspicions escalated about Trump’s relationship with Moscow, a group of data scientists identified odd internet data that appeared to link servers for the Trump Organization to Alfa Bank.
Working with Rodney Joffe, a technology executive and cybersecurity expert, they theorized that it might be a covert communications channel. Joffe, who was already a client of Sussmann’s, brought the matter to him, and Sussmann relayed those suspicions to reporters and the FBI. He also told Elias about it, and Clinton campaign officials were apparently aware that he was trying to get reporters to write about it.
Seeking a meeting with the FBI to share the material, Sussmann reached out to James Baker, then the agency’s top lawyer. Sussmann said in a text that he was not bringing it on behalf of any client and was motivated by a desire to help the bureau. Baker is expected to be a primary prosecution witness.
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But Durham’s team obtained law firm billing records showing that Sussmann had logged time working on the Alfa Bank suspicions for the Clinton campaign. The team argued that he lied because if the FBI knew of the political connection, agents might have treated the matter differently.
“The strategy, as the government will argue at trial, was to create news stories about this issue, about the Alfa Bank issue,” Andrew DeFilippis, a prosecutor for Durham, said at a recent hearing. “And second, it was to get law enforcement to investigate it; and perhaps third, your honor, to get the press to report on the fact that law enforcement was investigating it.”