{"id":1488149,"date":"2022-05-23T08:44:42","date_gmt":"2022-05-23T12:44:42","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1488149"},"modified":"2022-05-23T08:44:44","modified_gmt":"2022-05-23T12:44:44","slug":"what-to-know-as-the-durham-sussmann-trial-heads-into-week-two","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/what-to-know-as-the-durham-sussmann-trial-heads-into-week-two\/","title":{"rendered":"What to Know As the Durham-Sussmann Trial Heads Into Week Two"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"float:left\"><div class=\"counts mashsbcount\">22<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Fwhat-to-know-as-the-durham-sussmann-trial-heads-into-week-two%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1488149&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><div><\/div>\n<p>Today starts week two in <em>United States v. Sussmann<\/em>, Special Counsel John Durham\u2019s false statement case against Michael Sussmann. According to the grand jury indictment, Sussmann lied to former FBI General Counsel James Baker when he told Baker he was not acting on behalf of any client when he provided Baker with data supposedly establishing an Alfa Bank-Trump connection, when in fact Sussmann represented both the Hillary Clinton campaign and Rodney Joffe.<\/p>\n<p>After a brief interlude on Friday to accommodate the vacation schedule for a defense witness, former Clinton campaign manager Robby Mook, on Monday jurors will hear again from the government in its case-in-chief. Here\u2019s what happened last week to prepare you for the week ahead.<\/p>\n<h2>A Tale of Two Themes<\/h2>\n<p>Prosecutors and the defense team began last week by framing their overriding themes for the jury during opening statements.<\/p>\n<p>\u201cPrivilege\u201d served as prosecutors\u2019 one-word refrain as they introduced the case to the D.C. federal jury. \u201cThe evidence will show that this is a case about privilege: the privilege of a well-connected D.C. lawyer with access to the highest levels of the FBI; the privilege of a lawyer who thought that he could lie to the FBI without consequences; the privilege of a lawyer who thought that for the powerful the normal rules didn\u2019t apply, that he could use the FBI as a political tool,\u201d government attorney Brittain Shaw told jurors.<\/p>\n<p>The privileged D.C. lawyer and defendant Sussmann executed the plan to politicize the FBI with \u201ca look, a leak, and a lie,\u201d according to the special counsel. The \u201clook\u201d consisted of researchers scouring internet traffic to establish a potential tie between Trump and Russia. The \u201cleak\u201d came after, when Sussmann and tech executive Joffe \u201cleaked the Alfa Bank allegations to a reporter at The New York Times with the hope and expectation that he would run a story about it.\u201d<\/p>\n<p>Then came the lie, the special counsel explained, telling the jury: \u201cYou will see that when the reporter didn\u2019t publish this story right away, the defendant and others decided to bring this information to the FBI and to create a sense of urgency, to also tell the FBI that a major news organization was running a story within days. That\u2019s when the defendant requested the meeting with the FBI general counsel and told him that he was not doing this for any client.\u201d<\/p>\n<p>Lawyers for Sussmann told a completely different tale, with the defense\u2019s theme focused on \u201ccredentials and concern\u201d\u2014Sussmann\u2019s credentials as \u201ca serious national security and cyber security lawyer\u201d and his genuine concern for national security.<\/p>\n<p>Sussmann spent more than a decade as a federal prosecutor before entering private practice and, even then, Sussmann retained a top-secret clearance, the defense team stressed. Likewise, Sussmann\u2019s client, Joffe, came well-credentialed\u2014an \u201cInternet executi\u00adve who was the world\u2019s leading cyber expert, the world\u2019s leading expert on DNS data, who was an FBI confidential informant, who had relationships up and down the government.\u201d<\/p>\n<p>Thus, when Joffe approached Sussmann with suspicious data, Sussmann took the concern seriously\u2014more so, his lawyers argued, because at the time stories of a Trump-Russia connection were swirling. That is why Sussmann approached his friend Baker with the Alfa Bank data\u2014to assist his former colleague and to warn the FBI of a news report that was about to hit the wires.<\/p>\n<p>Nothing else makes sense, Sussmann\u2019s attorneys stressed, telling the jurors to ask themselves, \u201cWhat would Michael Sussmann gain by lying to Mr. Baker? Nothing. What would he lose? Everything. He\u2019d lose his credibility, his relationship with Baker, his security clearance, his livelihood. For what?\u201d In short, \u201cthe government\u2019s theory doesn\u2019t make sense,\u201d the defense told the jury.<\/p>\n<h2>What The Government Must Prove<\/h2>\n<p>On Tuesday, the trial began in earnest when the government began calling its witnesses. The court, however, first provided the jury with a few preliminary instructions, telling jurors:<\/p>\n<blockquote class=\"wp-block-quote\">\n<p>The defendant, Michael Sussmann, is being tried on a single criminal charge: that he willfully and knowingly made a materially false, fictitious, and fraudulent statement or representation in a matter before the Federal Bureau of Investigation; namely, that Mr. Sussman stated to the general counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations, when, in fact, he was acting on behalf of two specific clients, namely Rodney Joffe and the Hillary Clinton Campaign. Mr. Sussman has pled not guilty to that charge.<\/p>\n<\/blockquote>\n<p>While following the close of evidence the judge will provide detailed instructions about the facts the government must establish beyond a reasonable doubt for the jury to convict Sussmann, the court\u2019s overview highlighted the necessary elements prosecutors must prove. Specifically, prosecutors must prove that Sussmann \u201cknowingly\u201d made a \u201cfalse statement\u201d that was \u201cmaterial\u201d to the \u201cFBI\u2019s operations.\u201d<\/p>\n<p>To establish that the defendant made a false statement, the government must show both that Sussmann told Baker during their September 19, 2016, meeting that he was not representing a client and that Sussmann was in fact representing a client, either Joffe or the Clinton campaign or both. Last week, prosecutors presented strong evidence to establish both facts.<\/p>\n<h2>Facts On the Prosecution\u2019s Side<\/h2>\n<p>First, Baker testified that he was \u201c100 percent confident\u201d that Sussmann had claimed during their September 19, 2016, meeting that he was not there \u201con behalf of any particular client.\u201d Baker also told the jury that the evening before, in requesting the meeting via text, Sussmann wrote, \u201cI\u2019m coming on my own \u2013 not on behalf of a client or company. [W]ant to help the Bureau.\u201d Prosecutors also admitted a copy of the text into evidence, allowing jurors to see the damning message themselves.<\/p>\n<p>Baker also testified that after meeting with Sussmann he spoke with Bill Priestap, who at the time served as the assistant director of the FBI\u2019s Counterintelligence Division, and Trisha Anderson, then the FBI\u2019s deputy general counsel, telling them about his discussion with Sussmann.<\/p>\n<p>Later today, Priestap and Anderson are scheduled to testify about notes they took at the time, with Priestap\u2019s notes indicating Baker had said Sussmann was \u201cnot doing this for any client.\u201d Anderson\u2019s notes similarly showed Baker relaying that Sussmann had said: \u201cNo specific client.\u201d<\/p>\n<p>Last week, prosecutors also presented testimony and other evidence to show that while claiming he was not representing a \u201cspecific client,\u201d in fact Sussmann was working on behalf of the Clinton campaign and Joffe. In questioning Marc Elias, who served as the lead Perkins Coie lawyer for the Clinton campaign, prosecutors <a href=\"https:\/\/www.politico.com\/news\/2022\/05\/18\/marc-elias-clinton-campaign-sussmann-00033404\">elicited<\/a> testimony that Elias had hired the investigative firm Fusion GPS to assist in opposition research against Trump. Elias later told jurors that he first learned of the supposed Alfa Bank-Trump secret communication channel from Sussmann.<\/p>\n<p>Prosecutors further culled from their questioning of Elias a detailed explanation of billing records that showed Sussmann reporting time spent on a \u201cconfidential project\u201d to the Clinton campaign around the time of Sussmann\u2019s meeting with Baker. Elias also testified that to his knowledge, the Alfa Bank connection was the only project related to the Clinton campaign on which Sussmann was working at the time.<\/p>\n<p>Moreover, while Elias claimed it was not in the Clinton campaign\u2019s best interest for Sussmann to have provided the Alfa Bank \u201cintel\u201d to the FBI, Elias acknowledged that lawyers working for the Clinton campaign held great discretion in representing the 2016 candidate. Another prosecution witness, Deborah Fine, who served as \u201cone of several deputy general counsels\u201d for the Clinton campaign, likewise <a href=\"https:\/\/technofog.substack.com\/p\/day-2-of-the-michael-sussmann-trial?s=r\">confirmed<\/a> Fusion GPS, with whom Sussmann worked on the Alfa Bank hoax, had broad discretion to accomplish specific tasks.<\/p>\n<h2>Hillary Clinton Approved the Alfa Bank Operation<\/h2>\n<p>In addition to Elias and Fine, the special counsel also called to the stand Laura Seago, who during the 2016 campaign had worked for Fusion GPS. Seago testified about her work related to the opposition research undertaken on behalf of the Clinton campaign and specifically of a meeting she attended with Elias, Sussmann, and Joffe at which the Alfa Bank allegations were first discussed. Seago further <a href=\"https:\/\/technofog.substack.com\/p\/day-2-of-the-michael-sussmann-trial?s=r\">told<\/a> the jury that she understood the \u201cAlfa Bank work was related to the broader project for Perkins Coie and the Democratic entity.\u201d<\/p>\n<p>Under questioning from prosecutors, both Elias and Mook confirmed the campaign pushed the Alfa Bank story to the press. Mook went one step further, testifying that Hillary Clinton had personally \u201cagreed to\u201d the decision to peddle the allegations of a secret communication channel between Trump and the Russian-based Alfa Bank to the media.<\/p>\n<p>While much of the testimony to date has focused on the Clinton campaign and its involvement in pushing the Alfa Bank data, prosecutors also highlighted Joffe\u2019s role to bolster the argument that when Sussmann met with Baker, he was also representing Joffe. Steve DeJong, an employee at the then-Joffe-connected tech giant Neustar, told the jury that Joffe had directed him to pull \u201cDNS\u201d data related to Trump and his associates.<\/p>\n<p>Next week, when prosecutors call Georgia Tech researcher Dave Dagon to the stand, Joffe\u2019s role in the Alfa Bank hoax will likely be further exposed. Dagon worked with Joffe and served as Fusion GPS\u2019s press liaison to explain the complicated data.<\/p>\n<h2>What the Special Counsel Must Also Prove<\/h2>\n<p>Even if this testimony, and that set for next week, establishes that Sussmann represented the Clinton campaign and Joffe and thus lied to Baker, the special counsel must still prove the lie was \u201cmaterial.\u201d To be material, the lie must be \u201ccapable of influencing a decision\u201d of the government actor.<\/p>\n<p>In questioning Baker, prosecutors elicited testimony to further the case that Sussmann\u2019s lie mattered, with the former FBI general counsel <a href=\"https:\/\/thefederalist.com\/2022\/05\/20\/reluctant-witness-devastates-defense-claims-in-special-counsel-criminal-case\/\">stating<\/a> \u201che would not have\u00a0<a href=\"https:\/\/twitter.com\/AGoudsward\/status\/1527356805457727491\">taken<\/a>\u00a0the private meeting with Sussmann if he knew Sussmann was working on behalf of the Clinton team.\u201d Baker also\u00a0<a href=\"https:\/\/twitter.com\/AGoudsward\/status\/1527288660416032777\">told<\/a>\u00a0the jury he had \u201cvouched for\u201d Sussmann in passing on the Alfa Bank information, while treating Sussmann as a sensitive confidential human source and protecting his identity from other agents.<\/p>\n<p>Prosecutors also elicited testimony from FBI Special Agent Scott Hellman to help build the case that Sussmann\u2019s lie was material. Hellman, an expert in DNS data, testified that the Alfa Bank data did not <a href=\"https:\/\/technofog.substack.com\/p\/day-1-of-the-michael-sussmann-trial?s=r\">support<\/a> the conclusion of the whitepapers, calling the methodology used \u201cquestionable.\u201d Hellman further explained that in assessing the data, knowing whether it came from someone with \u201ca political affiliation or motivation\u201d would affect the initial steps of an investigation.<\/p>\n<p>On this latter point, Hellman told the jury he met roadblocks when trying to <a href=\"https:\/\/nypost.com\/2022\/05\/17\/fbi-agent-mocked-trump-russia-tale-pushed-by-clinton-camp\/\">determine<\/a> the origins of the data. \u201cI do remember I was frustrated at not being able to ID who had provided these thumb drives to Mr. Baker. He was not willing to tell me,\u201d Hellman testified last week. When coupled with Baker\u2019s testimony that he would not have withheld Sussmann\u2019s name had he known Sussmann was representing a client, prosecutors have already presented sufficient evidence of materiality, but more is likely to come this week.<\/p>\n<h2>If Sussmann Lied, Was It On Purpose?<\/h2>\n<p>That leaves the final element of proof, concerning Sussmann\u2019s state of mind. Section 1001, which criminalizes false statements, requires that the defendant intentionally or knowingly make the false statement. In submitting proposed jury instructions to the court, the government and Sussmann agreed that jurors should be instructed that \u201can act is done knowingly if it is done purposely and voluntarily, as opposed to mistakenly or accidentally,\u201d and that \u201can act is done willfully if it is done with an intention to do something the law forbids, that is, with a bad purpose to disobey the law.\u201d<\/p>\n<p>To prove Sussmann acted with the requisite intent, the special counsel will need to rely on circumstantial evidence presented to the jury, the strongest of which will be Sussmann\u2019s billing records that show he billed his time related to Alfa Bank to the Clinton campaign. Prosecutors also presented testimony from two former CIA employees to bolster the conclusion that Sussmann knowingly lied to Baker.<\/p>\n<p>The first CIA agent to testify, Mark Chadason, explained that in attempting to score a meeting with the CIA, Sussmann claimed he had a client who \u201cwas an engineer with a number of patents, and is most likely a contractor to the [intelligence community].\u201d Conversely, when Sussmann met with another CIA agent, identified only as \u201cKevin P.,\u201d Sussmann <a href=\"https:\/\/www.washingtonexaminer.com\/news\/sussmann-told-cia-similar-client-lie-in-2017-durham-says\">said<\/a> \u201che was not there for a client.\u201d<\/p>\n<p>This week the government will likely admit as additional evidence of Sussmann\u2019s state of mind his congressional testimony from 2017. During that congressional hearing, when <a href=\"https:\/\/www.npr.org\/2021\/09\/16\/1038035231\/the-trump-russia-probe-special-counsel-has-charged-a-lawyer-with-lying-to-the-fb\">asked<\/a> about his meeting with Baker, \u201cSussmann testified he passed the information along on behalf of a client, who is a cybersecurity expert.\u201d While Sussmann did not name Joffe as the client, the description matches the tech expert, and the other evidence of Sussmann\u2019s representation of Joffe related to the Alfa Bank matter provides strong support to the claim that Sussmann knowingly lied to Baker.<\/p>\n<h2>The Defense Seeks to Confuse the Jury<\/h2>\n<p>Seeing the strength in this circumstantial evidence of Sussmann\u2019s state of mind, his legal team is pushing for a \u201cgood faith defense\u201d instruction which, while appropriate in some circumstances, appears proffered to confuse the jury. Specifically, Sussmann seeks an instruction stating, \u201cthe defendant\u2019s conduct is not willful if it was the result of a good faith understanding that he was acting within the requirements of the law,\u201d and that \u201cthis is so even if the statement is, in fact, erroneous.\u201d<\/p>\n<p>The court has yet to rule on whether to provide Sussmann\u2019s proposed instruction on a \u201cgood faith\u201d defense, but if presiding Judge Christopher Cooper accedes to the request, the defense will be able to misdirect the jury from the relevant facts of the case to its theme that Sussmann had a \u201cgenuine national security concern\u201d about the Alfa Bank data and believed he had an obligation to share the information with the FBI.<\/p>\n<p>But Sussmann is not on trial for sharing the data with the FBI. He\u2019s on trial for lying to Baker when he did so. A good faith belief in the validity of the data is irrelevant to the question of whether Sussmann knowingly made a false statement to Baker on September 19, 2016. Under these circumstances, providing the requested instruction to the jury would only confuse the issue.<\/p>\n<p>It will likely be at least another week, however, before the court resolves the jury instruction issues. In the meantime, the special counsel resumes today with its case-in-chief.<\/p>\n<hr class=\"wp-block-separator\" \/>\n<p>\n  Margot Cleveland is The Federalist&#8217;s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. <\/p>\n<p>Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize\u2014the law school\u2019s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. <\/p>\n<p>As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Today starts week two in United States v. Sussmann, Special Counsel John Durham\u2019s false statement case against Michael Sussmann. According to the grand jury indictment, Sussmann lied to former FBI<\/p>\n","protected":false},"author":498,"featured_media":2315279,"comment_status":"open","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"","fifu_image_alt":"","footnotes":""},"categories":[],"tags":[],"class_list":["post-1488149","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1488149","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/498"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=1488149"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1488149\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2315279"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=1488149"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1488149"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1488149"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}