Prosecutors allege Michael Sussmann planned "October Surprise" against Trump in September 2016 FBI meeting, as trial gets underway
Washington – Special counsel John Durham's first jury trial in the three years since his appointment by Trump Attorney General Bill Barr commenced Tuesday with prosecutors alleging a noted cyber attorney with ties to Hillary Clinton's presidential campaign planned to "create an 'October surprise' on the eve of a presidential election."
Attorney Michael Sussmann, whose law firm represented Clinton's 2016 presidential campaign, is charged with a single count of lying to investigators that year, after he brought the FBI unverified evidence that may have connected Trump Tower with Russia's Alfa Bank. Sussmann's alleged lie, however, was not the now-debunked evidence he gave to the FBI, but rather, his stated reason for bringing the material to the FBI – he said he was acting alone and not on behalf of any client.
In opening arguments, prosecutors on Durham's team focused on a Sept.19, 2016, meeting between Sussmann and then-FBI general counsel James Baker, who is set to be called as a government witness later in the trial. At that meeting, prosecutors alleged Sussmann was attempting to set a plan in motion that would help two clients, technology executive Rodney Joffe and the Clinton campaign.
Sussmann delivered to Baker – who defense attorneys later described Tuesday as a friend of the defendant at the time – thumb drives and memos provided to him by Joffe that contained the data purportedly linking Trump to the Russian bank. According to Durham's team, he did so to carry out an alleged and so far uncharged scheme to negatively impact Trump's political campaign and allegedly lied about his clients to make the information appear more trustworthy.
"There was a crime in all of this: the defendant's lie to the FBI general counsel," said prosecutor Deborah Shaw, "Whether we hate Donald Trump or like him, we have to agree that some things have to be above politics. One of those things s our law enforcement agencies. The other is the truth."
But Sussmann's defense shot back in their opening salvo, "You think Mr. Sussmann would throw his career away, his life away, to tell a lie to that guy," they asked the jury, referring to Baker.
Sussmann, they contended, contacted Baker to "help" the FBI and prepare the Bureau for an expected New York Times story on the data after Joffe brought the data to Sussmann's attention.
"If Michael Sussmann didn't care about the FBI, we wouldn't be here," defense attorney Michael Bosworth argued, telling the jury that Sussmann, a trusted cybersecurity lawyer known to the U.S. government, received the data from Joffe, a tech executive who has worked with the government.
The charge, they told the jury, was "nonsensical."
As for Baker, the second half of the pivotal Sept. 19, 2016, meeting, Sussmann's defense said his memory of that day was "clear as mud" and argued his accounting of whether Sussmann had discussed a client at the meeting changed over time.
Although the veracity of the data Sussmann gave Baker is not the central question before the jury, the defense asserts that the alleged lie's materiality to the broader probe into potential connections between the Trump organization and Russia is vital – they say it was not material at all.
But one of Durham's first witnesses, FBI special agent Scott Hellman, testified on Tuesday "Knowing where the data comes from…gives me context how much I believe it? Do I think it's real and do I trust it?"
Hellman was tasked with probing potential ties between Trump and Alfa Bank and said he would have taken into consideration potential political connections in the source of the data. However, he said it would not have changed the technical aspects of the investigation and in cross-examination told the jury he did not recall any discussion of the source of the Alfa Bank data, which Hellman said caused some "frustration."
"We were told very little about the information if anything at all," said the FBI Special Agent.
Under questioning by prosecutors, Hellman said that his team "did not agree that this data represented the finding of a secret channel of communication between the Trump organization and Russia." The findings brought to the FBI's attention were "abnormal," he said, but were later transferred to the FBI's Chicago field office for furthe evaluation.
Ultimately, the FBI found that there was insufficient evidence to support the allegations that there had been a secret communications channel between the Trump Organization and the Russian bank.
Witnesses called on Tuesday testified that Sussmann, who pleaded not guilty to the single count brought against him, was not involved in the collection or evaluation of the Alfa Bank data.
The indictment against Sussmann alleges Joffe, identified only as Tech Executive-1 at the time, hired Sussmann as his lawyer and claimed he had been offered a "top" cybersecurity position in the government if Clinton won the election. Although he is not charged with a crime, prosecutors say Joffe remains under investigation, and the defense has urged Durham's team to give him immunity in the case to free him to "offer critical exculpatory testimony on behalf of Mr. Sussmann."
In court on Tuesday, prosecutors revealed in testimony that Joffe had formerly acted as a confidential human source working with investigators.
Witnesses in the ongoing trial will likely include Baker, Sussman's former colleague and Clinton campaign lawyer Marc Elias, Robby Mook, who worked for Clinton's campaign and Justice Department Inspector General Michael Horowitz.
