Washington, D.C. — The jury in Democratic attorney Michael Sussmann’s false-statement trial returned a verdict of not guilty on Tuesday after a two-week trial.
Sussmann was accused of having lied to former FBI general counsel James Baker, who he approached in September 2016 with flimsy evidence of a secret communications channel between the Trump Organization and Russia’s Alfa Bank. He is alleged to have told Baker during a meeting at FBI headquarters that he was coming to him on behalf of no client while representing both Hillary Clinton’s presidential campaign and tech executive Rodney Joffe.
During the trial, the prosecution presented evidence of Joffe enlisting employees across several of his companies to search for connections between Donald Trump and the Russian Federation, efforts that eventually turned up Domain Name System (DNS) data that comprised the evidence of the Alfa Bank allegation. Sussmann worked with Joffe, the Clinton campaign, and opposition firm Fusion GPS to put together “whitepapers” drawing erroneous conclusions from the data and market them to the press.
Despite an initial review of the data and whitepapers that led to their thorough debunking, FBI leadership, including Director James Comey remained “fired up” over the allegations, and demanded that a full investigation be opened up. The results of that investigation returned the same conclusion as the initial review.
As its best evidence for Sussmann’s guilt, the prosecution produced a text message from Sussmann requesting the meeting with Baker in which he states "I'm coming on my own – not on behalf of a client or company – want to help the Bureau." Additionally, billing records show that he charged the Clinton campaign for work on a “confidential project” on the day of his meeting with Baker, as well as for the flash drives he used to turn the DNS data over to FBI.
Unfortunately for the prosecution — comprised of members of Special Counsel John Durham’s team, which is working on a broader inquiry into the origins of the federal government’s investigation of ties between Trump and Russia — the message was not discovered until shortly before the trial, so Sussmann was only charged with having lied during the meeting, and not in the message.
Moreover, Baker, their star witness, has reversed himself on the question of what Sussmann said during their meeting a number of times over the years. Despite stating on the witness stand during the trial that he was “100 percent confident” that Sussmann told him he had no client during the meeting, the defense’s presentation of a timeline of Baker’s evolving testimony on the matter did significant damage to his credibility.
Even if the jury did come to the conclusion that Sussmann lied to Baker during their meeting, the case may have hinged on the materiality of his deception, the question of whether the deception altered the course of the investigation into the Alfa Bank matter.
A number of witnesses involved in the investigation called to the stand by the prosecution explained how knowledge of the provenance of the allegation — especially if they knew it was coming from Trump’s direct political competitor — would have changed their calculus, while the defense cited sloppy investigative practices and report-writing to undermine the government’s theory of materiality.
Despite the poor quality of the evidence backing up the Alfa Bank allegation, Sussmann and the Clinton campaign eventually succeeded in getting it brought into the public sphere in a story published by Slate’s Franklin Foer on October 31. The article was promoted by Hillary Clinton herself — who greenlit the allegation’s being leaked to the press — in a tweet.
The prosecution alleged that Sussmann was part of a broader conspiracy to create an “October Surprise” for the Trump campaign. Sussmann was the second American to be indicted by Durham. Kevin Clinesmith, an FBI lawyer who falsified a record to obtain a Foreign Intelligence Surveillance Act warrant on Trump campaign advisor Carter Page, pled guilty to felony charges in August 2020.
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