WASHINGTON — A lawyer for Hillary Clinton’s 2016 campaign who is charged with lying to the FBI early in the Trump-Russia probe sought to “use and manipulate” federal law enforcement to create an “October surprise” in the final weeks of the presidential race, a prosecutor alleged Tuesday at the start of his trial. Defense lawyers told jurors he never lied.
Michael Sussmann is accused of misleading the FBI during a September 2016 meeting by telling the bureau’s top lawyer that he wasn’t acting on behalf of a particular client when he presented computer data that he said might connect Russia to then-candidate Donald Trump.
In reality, prosecutors say, he was acting on behalf of the Clinton campaign and another client who had provided him with the data.
He lied, prosecutor Brittain Shaw told jurors, in hopes of generating an “October surprise” of FBI investigations into Trump and negative news coverage of him and because he knew the FBI would consider the information less credible if it thought it was being presented on behalf of the Clinton campaign.
“He told a lie that was designed to achieve a political end, a lie that was designed to inject the FBI into a presidential election,” said prosecutor Brittain Shaw.
But Sussmann's lawyers sought to counter each of the prosecution’s allegations, portraying him as a well-respected attorney with deep experience in law enforcement and cybersecurity matters who would never lie to the FBI. The fact that he represented Democratic clients was well-known to the FBI and not anything he intended to hide, they said.
“He was someone the FBI knew represented partisan clients," defense lawyer Michael Bosworth said in his opening statement. ”The FBI knew that he represented the Clinton campaign that summer. The FBI knew that he was an attorney for the DNC, the Democratic Party itself."
In any event, Bosworth said, it would be impossible for prosecutors to prove that Sussmann had lied because only he and the FBI lawyer he met with, James Baker, were present and neither took notes. Five and a half years after the meeting, Baker's memory of what was said is “clear as mud,” Bosworth said.
Sussmann's trial is the first arising from special counsel John Durham’s investigation into the FBI’s original probe into Russian election interference and potential ties with the Trump campaign. Though Durham was thought to be focused at least initially on misconduct by government officials during the course of the Russia investigation, the Sussmann case alleges wrongdoing by a tipster to the FBI rather than the FBI itself.
In an early recognition of the politically loaded nature of the case, Shaw urged jurors to put aside any feelings they might have about Trump, Russia, or Clinton.
“Some people have very strong feelings about politics and Russia, and many people have strong feelings about Donald Trump and Russia. But we are not here because these allegations involve either of them, nor are we here because the client was the Hillary Clinton campaign,” Shaw said.
Rather, she added, “We are here because the FBI is our institution. It should not be used as a political tool.”
At issue is a Sept. 19, 2016, meeting in which Sussmann presented Baker, then the FBI’s general counsel, with computer data gathered by another of his clients that purported to show furtive contact between computer servers of the Trump Organization and Russia-based Alfa Bank. That connection, if true, would have been explosive at a time when the FBI was examining whether the Trump campaign and Russia were conspiring to sway the election.
The FBI investigated the data but quickly ruled out anything suspicious or nefarious. The Internet activity instead reflected what Shaw described as a “spam e-mail server” used to send out marketing.
“The server did not reflect a crime,” Shaw told jurors, “nor was it a threat to national security.”
An FBI agent who assessed the data, Scott Hellman, said the data relied on “far-reaching” assumptions and did not support a conclusion of any communication between Trump and Russia, let alone a secret back channel.
Bosworth told jurors that Sussmann took the computer data seriously because it appeared to show “weird contacts” between Trump’s business organization and Russia and because it was given to him by Rodney Joffe, a client who Bosworth said was such a respected technology executive that the FBI had asked him to be an informant.
He said Sussmann had sought out the meeting to give Baker a heads-up that a story about the computer data might be published imminently by The New York Times. Shaw, the prosecutor, had a different take, saying Sussmann had grown frustrated that a reporter he’d been working with had not yet written about the data and wanted to prompt investigations by the FBI that could ensure news media coverage.