Sussmann not guilty of lying to FBI in 2016 for Hillary Clinton

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A federal jury delivered a major setback to special counsel John Durham on Tuesday, acquitting well-connected lawyer Michael Sussmann on a charge that he lied to the FBI in 2016 while acting on behalf of the Hillary Clinton campaign — a trial that sought to revive old controversies about the FBI’s role in that election.

The verdict, coming after less than a full day of deliberations spread over parts of Friday and Tuesday, was not a close call or a hard decision, two jurors told The Washington Post.

“Politics were not a factor,” the jury forewoman said. “We felt really comfortable being able to share what we thought. We had concise notes and we were able to address the questions together,” she said, declining to give her name as she left the courthouse.

“Personally, I don’t think it should have been prosecuted,” she added, saying the government “could have spent our time more wisely.” A second juror told The Post that in the jury room, “everyone pretty much saw it the same way.”

Sussmann was accused of lying to a senior FBI official in September 2016 when he brought the FBI allegations of a secret computer communications channel between the Trump Organization and Russia-based Alfa Bank. FBI agents investigated the data but concluded that there was nothing suspicious about it.

Durham, appointed three years ago during the Trump administration to find possible wrongdoing among federal agents who probed Trump’s 2016 campaign, alleged that Sussmann had lied to the FBI when he claimed that he was not bringing them the information on behalf of any client, when, the prosecutors alleged, he did so on behalf of the Clinton campaign and Rodney Joffe.

Sussmann, the first person charged by Durham to go to trial, said outside court that “justice ultimately prevailed in my case. … I’m looking forward to getting back to the work I love.”

Durham did not speak outside court, issuing a statement that said: “While we are disappointed in the outcome, we respect the jury’s decision and thank them for their service.” Durham plans another trial in the fall, of a researcher accused of lying to the FBI about his research into Trump.

Gregory Brower, a former U.S. attorney and senior FBI official, said the acquittal was “not a surprising result given the lack of evidence” and the way false statement laws have historically been applied.

“The special counsel was only appointed because the former president wanted an investigation that he could point to for political reasons during the campaign, and (former attorney general William P.) Barr gave him one,” said Brower, noting that much of what Durham was tapped to investigate had already been exhaustively examined by the Justice Department’s inspector general. “This quick acquittal,” he said, “should mark the end of this chapter.”

In closing arguments, prosecutors told the jury that Sussmann thought he had “a license to lie” to the FBI at the height of the 2016 presidential campaign. Sussmann’s attorneys countered that the case against their client was built on a “political conspiracy theory.”

Over two weeks of testimony, the case rehashed some of the bitter controversies from the Trump-Clinton contest.

Sussmann prosecutors also take aim at Clinton, the FBI and the press

The jury ultimately rejected the prosecution claims, apparently swayed by the argument from Sussmann’s attorney, Sean Berkowitz, who said the prosecution was trying to turn a brief 30-minute meeting more than five years ago into a “giant political conspiracy theory.”

Jurors were tasked with answering a fairly simple legal and factual question — whether Sussmann lied about his client and whether that lie was relevant to the FBI investigation. Prosecutors argued Sussmann’s lie was just one part of a larger scheme by Clinton loyalists to use the FBI and news reporters to launch a damaging, last-minute revelation against Trump that would tip the election to Clinton.

“You can see what the plan was,” assistant special counsel Andrew DeFilippis told jurors in D.C. federal court. “It was to create an October surprise by giving information both to the media and to the FBI to get the media to write that there was an FBI investigation.”

Despite the trial’s frequent references to Clinton, Trump and other political figures, the prosecutor insisted that “this case is not about politics, it’s not about conspiracy, it’s about the truth.” Sussmann lied, DeFilippis said, because if he’d told the FBI that he was acting on behalf of Clinton, the FBI was less likely to consider his evidence or open an investigation.

Prosecutors showed the jury emails, law-firm billing records and even a Staples receipt for thumb drives to tie Sussmann to the Clinton campaign. But Berkowitz said much of the witness testimony showed that the Clinton campaign did not want the Alfa Bank allegations taken to the FBI, because they preferred to see a news story about the issue and feared an investigation might complicate or delay such stories.

“There is a difference,” Berkowitz said, “between having a client, and doing something on their behalf.”

He ridiculed prosecutors for painting as nefarious efforts to dig up damaging information about Trump for a campaign.

“Opposition research is not illegal,” he said, adding that if it was, “the jails of Washington, D.C., would be teeming over.”

What’s at stake in the Sussmann trial

Berkowitz readily conceded that Sussmann talked to reporters as part of his job, including journalists for The Washington Post and Reuters. He said prosecutors brought the case because they suffered from “tunnel vision” over news articles in Slate and the New York Times that appeared on Oct. 31, 2016, and — he argued — had little impact on the campaign.

“That’s the story? That’s the leak? That’s the conspiracy? Please,” Berkowitz said.

The key witness of the trial was James Baker, who was the FBI’s top lawyer when he met with Sussmann on Sept. 19, 2016. Baker told the jury he was “100 percent confident” that Sussmann insisted to him he was not acting on behalf of a client and that if he had known, he would have handled the conversation differently and perhaps not even agreed to the meeting at all.

Since Sussmann did not testify, Baker gave the only direct witness account of the conversation. Sussmann’s attorneys repeatedly challenged Baker’s credibility, noting that in one earlier interview, Baker said Sussmann was representing cybersecurity clients; in another, he seemed to say he didn’t remember that part of the talk. In response to questions on the witness stand, he said he couldn’t remember 116 times, according to Berkowitz.

Baker, who now works for Twitter, testified that Sussmann told him that a major newspaper — he later learned it was the New York Times — was preparing to write about the allegations. That apparently worried Baker, who said he knew a news story would probably cause any suspicious communications to stop, so he wanted the FBI to be able to investigate before an article appeared. Prosecutors say it was Sussmann himself who had provided the allegations about Trump to the Times.

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