“This is a case about privilege … the privilege of a lawyer who thought that for the powerful the normal rules didn’t apply, that he could use the FBI as a political tool,” Shaw said in her opening statement in the US District Court. “The defendant lied to direct the power and resources of the FBI to his own ends and to serve the agendas of his clients of him.”
Shaw said Sussmann and the Clinton campaign hoped that the FBI would jump on Sussmann’s report and launch an investigation that would embarrass Trump as voters prepared to go to the polls.
“It was a plan to create an October Surprise on the eve of the presidential election — a plan that used and manipulated the FBI … a plan that largely succeeded,” Shaw declared.
However, Sussmann’s defense said their client never misled the FBI and that the false-statement case against the former federal prosecutor is riddled with fatal flaws.
“Michael Sussmann did not lie to the FBI. Michael Sussmann would not lie to the FBI, ”defense lawyer Michael Bosworth said in his opening. “This case is an injustice.”
The single felony charge against Sussmann stems from a meeting he held with Baker in September 2016 to convey data and written reports about alleged internet links between computers in Trump Tower and a Russian bank, called Alfa Bank, which was owned by businessmen close to Russian President Vladimir Putin. The so-called Domain Name System or DNS lookup data appeared to signal that one or more computers at the Trump building were in regular contact with Alfa Bank. However, the FBI eventually determined that the apparent links were caused by an internet advertising server sending out what many would consider spam email messages, Shaw said.
Prosecutors have contended that some of the internet researchers who gathered the data harbored serious doubts about its significance. It’s unclear whether any of those doubts reached Sussmann. Judge Christopher Cooper has ruled that the accuracy of the data will not be discussed in front of the jury to avoid an intensely technical debate that could divert the trial.
The political overtones in this case are significant. Many Clinton allies believe Durham’s team is on a political errand to target a political ally of the two-time presidential candidate, former secretary of state and first lady. However, Durham himself is a veteran career prosecutor and former US Attorney who has been tapped under both Democratic and Republican administrations to handle highly-sensitive investigations. He was in the courtroom as the trial kicked off Tuesday.
Durham’s prosecutors likely face an uphill battle to persuade jurors in overwhelmingly Democratic Washington, DC, to convict a defendant who appears to have been on the same side as Clinton and was clearly on the opposite side of Trump. Cooper stressed to many jurors during the jury selection process that neither Clinton nor Trump are on trial here.
In her opening statement to the 16 jurors and alternates, Shaw called politics “the elephant in the room” and urged jurors to set those issues aside. “We are here because the FBI is our institution. It should not be used as a political tool for anyone … Whatever your political views might be they can’t be brought to the decision that you will be asked to make in this courtroom,” she said.
Bosworth acknowledged that Sussmann worked for the Democratic National Committee and for the Clinton campaign, but said those were pointless things for Sussmann to have lied about since the FBI knew he was a Democratic Party lawyer. But Sussmann’s defense of him insisted Tuesday that he was not actually acting for the campaign when he went to the FBI. Instead, Bosworth said, Sussmann was seeking to alert the law enforcement agency about a looming New York Times story that could make it harder for the FBI to investigate. The FBI later asked the Times to hold the story, the defense attorney said, something that amounted to a setback to the campaign.
“The meeting with the FBI was the exact opposite of what the Clinton campaign would have wanted,” Bosworth said. “The FBI meeting was something that they didn’t authorize, that they didn’t direct him to do, that they wouldn’t have wanted him to do.”