I represented the Clinton campaign. . . except when I wasn’t.
That’s the defense that Democratic attorney Michael Sussmann presented to the jury as his criminal trial began in Washington with opening statements and the first government witnesses. Sussmann is charged with one count of lying to the FBI in the first trial generated by Special Counsel John Durham’s Russiagate investigation.
As stated in Durham prosecutor Deborah Brittain Shaw’s opening statement, Sussmann allegedly lied to the FBI – specifically to his then-general counsel, James Baker – in order to cover up the fact that he was representing the Clinton campaign. , as well as Rodney Joffe, an expert in Internet services.
Joffe, a Hillary Clinton supporter who expected to land a top cybersecurity job if elected in 2016, had compiled internet data that he said indicated Republican nominee Donald Trump, had a secret communication channel to the Russian regime of Vladimir Putin, via servers of Alfa Bank, a major Russian financial institution.
Sussmann’s alleged lie occurred in September 2016, during the long stretch of the stormy presidential campaign, when he took Joffe’s data to the FBI and urged the bureau to investigate Trump. Sussmann is a former Justice Department cybersecurity attorney; rather than telling the FBI’s Baker that he worked for the Clinton campaign, Sussmann insisted he was not representing any clients, simply trying to help the bureau protect the country.
The FBI opened an investigation, but quickly closed it after concluding that the Sussmann/Joffe data was specious. The first prosecution witnesses, FBI agents who assessed the data without knowing its source, explained that it appeared nonsensical and likely prepared by someone with an agenda.
Shaw explained the prosecution’s theory that Sussmann’s FBI outreach was designed ‘to create a sense of urgency’ about the alleged Trump-Russia collusion threat the Clinton campaign was trying to peddle to the electorate .
Previously, Sussmann had contacted journalist Eric Lichtblau, then of the New York Times, to try to interest the Times in the Alfa Bank story. The campaign was frustrated that the Times was not acting fast enough, so Sussmann tried to goad the FBI into investigating, which would raise the profile of the collusion narrative.
The Sussmann defense tried to paint a different picture. The evidence that Sussmann worked for the Clinton campaign is overwhelming, including law firm records that show he billed his time on the Trump-Russia project to the Clinton campaign’s account from his then firm. So rather than trying to refute what is undeniable, the defense tries to analyze it.
Michael Bosworth, Sussmann’s attorney who made the opening defense statement, admitted that Sussmann was representing the Clinton campaign when he contacted the Times because the campaign wanted Alfa Bank’s claims made public. . But, Bosworth argues, because Sussmann believed the Times was about to publish the story, he felt a duty, as a former Justice Department official, to give the FBI some information about the story. .
This, the defense insists, was contrary to the interests of the campaign because the bureau allegedly contacted the Times to request a delay in publishing the story so that agents could investigate.
Thus, according to the defense, Sussmann represented the interests of the FBI, not those of the Clinton campaign. Bosworth says no one in the campaign specifically asked Sussmann to contact the FBI.
Legally and factually, this defense is untenable.
In fact, Sussmann was consulting throughout the relevant period with his then-partner, Marc Elias, the campaign’s chief counsel.
Obviously, it was in the campaign’s interest to get the FBI to investigate. The public could then be informed that the allegations of a corrupt Trump-Putin relationship were so serious that the government was stepping up to investigate them. Therefore, careful preparation was needed to present the data package to the office.
Sussmann billed his time for the FBI meeting at the Clinton campaign. And the campaign fought Durham’s requests for information, citing solicitor-client privilege.
Legally, a client retains the services of a lawyer precisely because the lawyer has knowledge and skills — in terms of protecting the client’s legal position — that the client lacks. The Clinton campaign retained Sussmann for judgment, and he chose to go to the FBI because he felt it was in the interest of his client’s desire to more effectively promote the Trump-Russia collusion narrative.
A lawyer can make erroneous judgments. In retrospect, a client may consider that the lawyer’s actions are backfiring and therefore not serving his interests. But that doesn’t change the stubborn fact that the lawyer’s actions were taken in the context of representing the client – including being paid by the client and having relevant communications protected by solicitor-client privilege.
If what we heard Tuesday is really Sussmann’s defense, Durham must be smiling.
Andrew C. McCarthy is a former federal prosecutor.