Breaking: ‘License to Lie’: Prosecutors Claim Sussmann Felt Entitled to Manipulate FBI in Closing Argument
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Washington, D.C. — Department of Justice prosecutor Andrew DeFilippis accused former DOJ and Perkins Coie attorney Michael Sussmann of feeling he had a “license to lie” during closing arguments in the latter’s false-statement trial on Friday.
Jonathan Algor delivered the government’s initial closing argument, submitting to the jury that Sussmann’s meeting with former FBI general counsel James Baker on September 19, 2016 had “nothing to do” with national security and was instead the product of months of work on “pure opposition research.”
Algor, summarizing the government’s case in an hour, argued that Sussmann “knew he had to conceal” his clients — Hillary Clinton’s campaign and tech executive Rodney Joffe — to get Baker to take seriously the evidence of backchannel communications between the Trump Organization and Russia’s Alfa Bank that he presented.
With a slideshow, Algor traced Sussmann’s work on research into the Trump-Alfa Bank allegations to July 2016. Joffe’s cybersecurity firm Neustar, which was also represented by Perkins Coie at the time, produced the evidence in the form of Domain Name System (DNS) data, or internet communications between the bank and a server linked to the Trump Organization.
In billing entry after billing entry running from July through September, Sussmann refers to work with opposition research firm Fusion GPS, Clinton campaign general counsel Marc Elias, and Joffe — as well as calls with reporters — as work on a “confidential project.” In once case, he refers to a “server issue.” In other instances, he cites work on a “whitepaper,” the name given to the summary documents that drew conclusions arrived at by Joffe, Fusion GPS, and others based on the DNS data also handed along to Baker by Sussmann.
All of the work was billed to Hillary for America.
Then on September 18, Sussmann asked Baker for a meeting via a text message in which he said "I'm coming on my own – not on behalf of a client or company – want to Bureau." The prosecution alleges that Sussmann repeated that line during their meeting the next day. Baker testified that he’s “a hundred percent confident” Sussmann said he wasn’t representing a client during the meeting and notes taken by two senior bureau officials Baker spoke to that day back up that claim.
"Up until September 19 at 2 p.m. he was representing the Clinton campaign and Rodney Joffe," said Algor, scoffing at the idea that that relationship was on pause for the approximately half-hour meeting. Sussmann originally billed the campaign for 4.5 hours of work on a “confidential project,” on that date, before revising that entry to 3.3 hours months later.
Additionally, Algor reiterated that Sussmann went back several days later on September 22 to bill the Clinton campaign for the purchase of the flash drives holding the DNS data that he gave to Baker.
The prosecution also preemptively pushed back on the defense’s assertion that Sussmann went to the FBI to help the bureau, as he claimed, noting that Sussmann had been working on the allegations for a long time, presented them to members of the media before bring them to Baker, and continued to spread the story to reporters even after he knew the bureau wanted to hold the stories.
The prosecution also devoted considerable time to persuading the jury that Sussmann’s lie did, or at least had the potential to, affect the course of the FBI’s investigation into the Alfa Bank matter.
For this task, the prosecution largely relied upon the testimony of witnesses it called over the course of the trial, including Baker, who said he might not have taken the meeting had he known Sussmann was working for a client, especially one with interests as diametrically opposed to Donald Trump’s as the Clinton campaign. Baker also testified that it would have slowed down the investigation and caused him to behave differently at several different points.
Agents Allison Sands and Curtis Heide, who ran the investigation into the communications channel from Chicago, both said that the motives would have been important to consider. Both they and agent Scott Hellman, who performed an initial review of the data, asked superiors for an opportunity to interview the source of the evidence, only to be rebuffed.
Sean Berkowitz responded in the defense’s closing argument by accusing the prosecution of constructing a shoddy case around “misdirection” and a “conspiracy theory.”
“The time for political conspiracy theories is over, the time to talk about the evidence is now,” said Berkowitz, before adding that “opposition research is not illegal.”
Berkowitz suggested that the the entirety of Baker’s memory of Sussmann saying he wasn’t representing a client might have come from the text message, citing the absence of contemporaneous notes from their meeting. The prosecution has agreed that the meeting, not the text, is the only false-statement Sussmann can be convicted of.
The defense’s presentation proceeded to assail Baker’s memory and credibility, pointing to 116 variations of Baker answering “I don’t recall” during his testimony, as well as previous statements Baker made that differed from those he made on the witness stand. Berkowitz’s strong implication was that Baker’s story changed on the basis of pressure from the government in more than ten meetings with prosecutors.
Also of significance to the defense’s case were notes from a March 6, 2017 meeting that indicated Sussmann had come on behalf of a client, though Baker is not believed to have been the one who delivered the briefing that day.
Berkowitz submitted that even if Sussmann had repeated what he said over text during the meeting, it would not constitute a lie, drawing a distinction between representing a client and going somewhere on their behalf. As evidence that Sussmann did not meet with Baker for Joffe or the Clinton campaign, he cited the fact that Sussmann did not make an ask during the meeting. When a lawyer represents a client “you’re advocating, you’re asking,” said an animated Berkowitz.
Finally, Berkowitz challenged the materiality of Sussmann’s statement. Berkowitz said that the FBI would have been interested in the allegations regardless of where they came from because it was already engaged in a far-reaching investigation into ties between Trump and Russia. Moreover, in testimony from March, Baker told bureau that he took the meeting because of the sensitivity of the matter stressed by Sussmann, as well as his trust in his friend and former colleague.
“Look at what they did back then” Berkowitz implored the jury, before pointing out that Hellman and Sands both said that the technical review would have been the same regardless of the source of the data.
“It’s your turn to do justice to prevent an injustice,” finished Berkowitz before urging a not guilty verdict.
DeFilippis had the last word of the day and trial, and began by asserting to the jury that “this is not even close to a close case.”
“They’re [the defense] trying to lawyer away the defendant’s lie,” continued DeFilippis.
DeFillipis argued that Baker’s testimony should have been enough in and of itself to convince the jury of what Sussmann said on September 19. “He [Baker] didn’t want to be here, he didn’t want to testify against his friend,” said DeFillipis, who said Baker’s obligation to the truth forced him to show up and say what he did under penalty of perjury. Furthermore, the notes of both people Baker spoke to about the issue that day indicate that Sussmann had no client. DeFilippis said that should greatly outweigh the notes from the following March.
He also flagged that Baker’s memory was that Sussmann said he was representing “no particular client.” He used the same phrase while bringing the allegations to the CIA in a 2017 meeting.
DeFillipis was dismissive of the theory that Sussmann relieved himself of his role as an advocate for the Clinton campaign and Joffe during the meeting, observing that no matter what he says “he billed everything to the Clinton campaign,” including both his time and the flash drives.
Emphasizing the statement’s materiality, DeFilippis noted that Judge Christopher Cooper’s jury instructions read "a statement is material if it has natural tendency to influence, or is capable of influencing" the bureau’s investigation. Then he provided a dizzying number of decision points — reached by Baker, other members of FBI senior leadership, Sands and Heide, and others — where Sussmann’s status as a Clinton campaign lawyer could have altered the course of the investigation, or at the very least been capable of doing so.
Sussmann believed he had a “license to lie,” because of his privilege as a high-powered lawyer with friends in high places, said DeFilippis, who ended by warning jurors to reach a decision based on the evidence, common sense, and jury instructions, rather than rhetoric.
The jury began deliberations on Friday afternoon, but a verdict will be announced on Tuesday at the earliest, as Judge Cooper left town around midday. The trial is the first to be held as a result of Special Counsel John Durham’s investigation into the origins of the federal government’s inquiry into the relationship between Donald Trump and Russia.
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