The case brought by Special Counsel John Durham accuses Sussman of lying by claiming that he did not provide the information to the FBI on behalf of any agent, when he allegedly did so on behalf of two agents: the Clinton campaign and CTO, Rodney Joffe.
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The trial represents the first courtroom test of the investigative work of Durham, who was appointed by Trump administration attorney general William B. Barr to investigate whether federal agents who investigated the 2016 Trump campaign committed wrongdoing.
Sussman’s conviction will be announced by Trump and his supporters as confirmation of the veracity of their allegations, the FBI conducted a manhunt investigation of the Republican stand before and after the 2016 election. The acquittal will likely fuel calls from the left for the Department of Justice to end the Durham job.
The jury, which began deliberating around 1 p.m. Friday, is tasked with answering a fairly simple legal and factual question – whether Sussman lied about his client and whether that lie was relevant to the FBI investigation. However, within two weeks of the testimony, prosecutors argued that the case was really about a broader scheme by Clinton loyalists to use the FBI and news reporters to launch a damaging last-minute revelations against Trump that would tilt the election to Clinton. The FBI investigated the Alpha Bank allegations and determined that they were unfounded.
“You can see what the plan is,” Assistant Special Counsel Andrew DePhillips told jurors in federal court in DC. “It was in order to create an October surprise by providing information to both the media and the FBI to get the media to write that there was an investigation by the FBI.”
“By law, no one has a license to lie to the FBI,” Devillips said. “By law, no one has the right to make a false statement to arm a law enforcement agency to support a political agenda — not Republicans, not Democrats.”
Despite repeated references in the trial to Clinton, Trump and other political figures, prosecutors maintain that “this case is not about politics, it’s not about conspiracy, it’s about the truth.” Devillips said Sussman lied, because if he told the FBI he was acting on behalf of Clinton, the FBI was unlikely to look into his evidence or open an investigation.
Sussman’s attorney, Sean Berkowitz, said the prosecution tried to turn a brief 30-minute meeting more than five years ago into a “giant political conspiracy theory.”
The defense attorney said there was plenty of reason to doubt the account of James Baker, the former FBI official who met with Sussman. Baker has given mixed answers in the past about the meeting. During his testimony in court, in response to various questions, he said that he does not remember 116 times.
“The time for political conspiracy theories is over,” Berkowitz said in a booming voice, “and it’s time to talk about the evidence.” Wearing a gray suit and a black mask, Sussman listened closely as lawyers argued over his fate.
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Prosecutors displayed jury emails, billing records for law firms, and even Staples’ receipt of thumb drives linking Sussman to the Clinton campaign. But Berkowitz said that plenty of witness testimony shows that the Clinton campaign did not want to take the Alpha Bank allegations to the FBI, because they wanted a news story about the case and feared the investigation would complicate or delay such stories.
“There is a difference between having a customer and doing something for them,” Berkowitz said.
He ridiculed prosecutors for portraying them as nefarious efforts to research harmful information about Trump for the sake of a campaign.
“Opposition research is not illegal,” he said, adding that if that were the case, “Washington, D.C. prisons would be overcrowded.”
Berkowitz readily admitted that Sussman spoke to reporters as part of his job, including reporters for the Washington Post and Reuters. He said prosecutors brought the case because they suffered “tunnel vision” due to two Slate and New York Times news stories that appeared in October. On September 31, 2016, and – he said – it had little impact on the campaign.
“This is the story? This is the leak? This plot? Please,” Berkowitz said.
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The main witness for the trial was Baker, who met with Sussman on 9/11. 19, 2016, when Baker served as the FBI’s senior attorney. Baker told the jury he was “100 percent confident” that Sussman told him he was not acting on behalf of a client and that if he had known, he would have handled the meeting differently and may not have agreed to the meeting at all.
Baker is the only direct witness to the conversation, and Sussman’s lawyers have repeatedly challenged his credibility on this point, noting that in a previous interview, Baker said Sussman was representing cybersecurity agents; In another part, he seemed to say he didn’t remember that part of the conversation. Prosecutors submitted billing records from Sussman’s law firm listing the time he spent on the case as acting on behalf of the Clinton campaign.
Baker, who now works for Twitter, tested that Sussman also told him that a major newspaper – later learned to be The New York Times – was preparing to write about the allegations. This alarmed Becker: He knew that a news story would cause any suspicious communications to be interrupted, so he wanted the FBI to be able to investigate before an article appeared. Prosecutors say it was Sussman himself who made the allegations about Trump’s information to The Times.
“It would have worried me, if there was an attempt to play the role of the FBI and drag us into the ongoing political campaign and somehow make us a pawn in the campaign,” Becker said. “It would have bothered me, this relationship with the press and whether there was some effort to engineer a situation where the FBI would investigate this material and that the press – although it could not and cannot determine the reliability of that material” report on that – It could be reported that the FBI was investigating the matter.”