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As a jury weighs if a lawyer lied to the FBI, Durham's legacy hangs in the balance

Special counsel John Durham, the prosecutor appointed to investigate potential government wrongdoing in the early days of the Trump-Russia probe, arrives to the E. Barrett Prettyman Federal Courthouse, Monday, May 16, 2022, in Washington.
Special counsel John Durham, the prosecutor appointed to investigate potential government wrongdoing in the early days of the Trump-Russia probe, arrives to the E. Barrett Prettyman Federal Courthouse, Monday, May 16, 2022, in Washington.

Jurors will return to the federal courthouse in Washington, D.C., on Tuesday to deliberate the fate of lawyer Michael Sussmann — and the legacy of the man prosecuting him, Justice Department special counsel John Durham.

Sussmann stands accused of lying to the FBI about whether he was working on behalf of a client with Democratic political interests when he brought the bureau allegations about questionable links between a Russian bank and the Trump Organization shortly before the election in 2016. Prosecutors said Sussmann wanted to use the FBI and major news outlets to deliver an October surprise that would hand the White House to Hillary Clinton, who was running against former President Donald Trump in that election.

The closely watched case amounts to the first courtroom test for Durham, a prosecutor known for going after mobsters and corrupt public officials who was appointed by former Attorney General Bill Barr to investigate the origins of the FBI probes into then-President Trump and Russia. But his now three-year-long probe has not uncovered explosive evidence of wrongdoing by the FBI. Instead, in this case, the FBI is the victim.

As the trial began, Judge Christopher Cooper told prospective jurors that they would not re-litigate the 2016 presidential election. But testimony from Clinton's campaign manager and general counsel and a series of former FBI officials whose work came under fire from Trump have helped cast political shadows across the case.

During the two-week trial, attorneys for the Clinton campaign, Sussmann's former law firm and even former Obama White House counsel Greg Craig lined up for a seat in the courtroom. Craig won an acquittal in the same courthouse three years ago over his lobbying work related to Ukraine.

Determining if Sussmann lied to the FBI

In closing arguments Friday, prosecutor Jonathan Algor told jurors Sussmann, a former cybercrime prosecutor, wasn't truly worried about Russian interference when he tried to blow the whistle about strange links between Trump and Alfa Bank.

"It wasn't about national security. It was about promoting opposition research about the opposition candidate, Donald Trump," Algor said.

Algor asserted the largely circumstantial evidence in the single count case is "overwhelming," and includes Sussmann's legal billing records, calendar entries and his testimony to a congressional panel in December 2017.

The key witness for Durham's team was former FBI general counsel James Baker, who met with Sussmann in September 2016. Baker didn't take notes about the meeting and has offered conflicting accounts about what Sussmann told him about clients. Months before the trial, Baker said he looked through his old text messages and found something important — lines from Sussmann, the day before their meeting, saying he was "coming on his own — not on behalf of a client or company."

Sussmann is charged only with making a false statement on the day of the meeting, not in the text message. But prosecutors cited it as an important clue.

"Under the law, no one has a license to lie to the FBI," said prosecutor Andrew DeFilippis. "This case is not about politics. It's not about conspiracies. It's about the truth."

Attorney Michael Sussmann leaves federal court in Washington, April 27, 2022.
Jose Luis Magana / AP
Attorney Michael Sussmann leaves federal court in Washington on April 27.

On the witness stand, Baker testified he was "100%" certain that Sussmann said he went to the FBI on his own at the meeting. But the defense team highlighted several inconsistencies, including whether the issue would have even mattered to the FBI, which was probing Russian election interference at the time. They said Baker testified he didn't remember things 116 times during the trial.

"The case is over, beyond a reasonable doubt, if you don't believe Mr. Baker's memory," said defense attorney Sean Berkowitz.

Berkowitz said Baker and two other FBI witnesses for the government had at one point or another been under investigation themselves, and he said they had motivations to "refresh" their memories to curry favor with the special counsel.

"Opposition research is not illegal," Berkowitz said. "If it were, the jails of Washington, D.C., would be teeming over."

He called the government's case "smoke, mirrors, noise" and said it never should have been brought.

Sussmann decided against testifying on his own behalf and put on only a few witnesses of his own, including two former DOJ colleagues who told the jury about his deep family ties and his integrity. He left his job at the law firm Perkins Coie after the indictment and has not been working as he prepared for trial.

If the Washington, D.C.-based jury convicts him, it's not clear Sussmann will face much if any prison time.

Judge Cooper told the jurors on Friday they were not to consider how, if at all, the defendant would be punished during their deliberations. That is, he said, a job for the judge.

Copyright 2022 NPR. To see more, visit https://www.npr.org.

Carrie Johnson
Carrie Johnson is NPR's National Justice Correspondent.