The first courtroom test for Special Counsel John Durham ended in defeat Tuesday as a federal jury found a Democratic attorney not guilty of making a false statement to the FBI related to allegations of computer links between Donald Trump and Russia.
The jury deliberated for about six hours before acquitting Michael Sussmann, 57, on the single felony charge he faced: that he lied when he allegedly denied he was acting on behalf of any client in alerting the FBI to claims that a secret server linked Trump and a Moscow bank with ties to Russian President Vladimir Putin.
During a two-week trial in federal court in Washington, Durham’s prosecutors argued that Sussmann was acting on behalf of the Clinton campaign and an internet executive when he took two thumb drives of data and white papers on the purported link to FBI General Counsel James Baker about six weeks before the 2016 presidential election.
Sussmann’s defense said the case was flawed on a variety of grounds, including that prosecutors could not prove with certainty exactly what the cybersecurity lawyer and former federal prosecutor said to Baker.
Sussmann’s attorneys also stressed that there was no evidence the Clinton campaign authorized Sussmann to go to the FBI, although he and researchers working for Clinton appeared to have spent an extensive amount of time dealing with the server allegations and were actively encouraging The New York Times to write about the issue in the closing weeks of the presidential race.
In the courtroom, Sussmann showed no evident reaction to the not guilty verdict, although he was masked as most trial participants have been throughout. A prosecutor asked that all 12 jurors be polled and they all confirmed the acquittal.
After U.S. District Court Judge Christopher Cooper gaveled out the trial, Sussmann’s two lead attorneys, Sean Berkowitz and Michael Bosworth, embraced.
In a brief statement outside the courthouse shortly after the verdict, Sussmann thanked his lawyers and said he views the not guilty verdict as a vindication.
“I told the truth to the FBI and the jury clearly recognized that with their unanimous verdict today,” Sussmann told reporters. “Despite being falsely accused, I believe that justice ultimately prevailed in my case.”
Sussmann’s defense team declined to address the crowd of reporters and cameras at the court, but issued a written statement blasting the prosecution.
“Michael Sussmann should never have been charged in the first place. This is a case of extraordinary prosecutorial overreach. And we believe that today’s verdict sends an unmistakable message to anyone who cares to listen: politics is no substitute for evidence, and politics has no place in our system of justice,” Berkowitz and Bosworth wrote.
Durham, who was not a member of the trial team but was present in the courtroom throughout, left the courthouse quietly and later issued a written statement expressing disappointment in the verdict. His prosecutors had described the evidence of Sussmann’s guilty as “overwhelming.”
“While we are disappointed in the outcome, we respect the jury’s decision and thank them for their service. I also want to recognize and thank the investigators and the prosecution team for their dedicated efforts in seeking truth and justice in this case,” the special counsel said.
Several jurors declined to comment on the deliberations as they left the courthouse, but the foreperson spoke briefly with reporters and stressed the burden that the prosecution faced in the case.
“The government had the job of proving beyond a reasonable doubt,” she said, declining to give her name. “We broke it down…as a jury. It didn’t pan out in the government’s favor.”
Asked if she thought the prosecution was worthwhile, the foreperson said: “Personally, I don’t think it should have been prosecuted because I think we have better time or resources to use or spend to other things that affect the nation as a whole than a possible lie to the FBI. We could spend that time more wisely.”
Shortly before the verdict was returned Tuesday morning, the jury sent Cooper a note asking if they had to agree unanimously on the grounds for their verdict. The judge replied that they had to agree on the basis for a guilty verdict, but they could acquit even if jurors differed about which of the various defense theories they accepted.
Following Sussmann’s outreach in 2016, the FBI concluded that the evidence Sussmann presented didn’t support the notion of a link between Trump and Russia’s Alfa Bank. Some agents assigned to the investigation found that the hints of such contacts found in domain name system records were actually caused by a marketing email server sending out spam message, but during the trial, Sussmann’s defense called the FBI’s probe “shoddy” and at least one agent involved conceded it was “incomplete.”
Trump’s aides denied any such link, and a computer security firm hired by Alfa Bank also concluded that the allegations were unfounded.
It’s unclear how the high-profile courtroom setback will impact Durham’s ongoing probe or his ability to bring future charges in his broad investigation into the origins of the FBI’s Trump-Russia investigation. Some Durham supporters have praised his pursuit of Sussmann as providing a useful vehicle to publicly air the involvement of the Clinton campaign in efforts to publicize the purported server link and for releasing evidence suggesting that some technical experts who advanced the allegations harbored doubts about them.
However, Justice Department policy generally bars prosecutors from using a criminal case to lay out a broader narrative unless they believe they have the beyond-a-reasonable-doubt evidence needed to get a conviction.
Senior Justice Department officials have been vague about what level of supervision is in place over Durham’s probe, which former Attorney General Bill Barr gave special-counsel status a few weeks before the 2020 election. Attorney General Merrick Garland has said the department is adhering to regulations governing the special counsel’s autonomy, but has declined to elaborate.
Some potential witnesses who declined to testify at Sussmann’s trial and were involved in handling of the server allegations cited concerns that Durham might try to prosecute them.
Durham’s probe, which began in May 2019, has produced two other criminal cases.
Last fall, Durham brought a broader, five-count felony case against a Russian-born researcher for allegedly feeding false information to the FBI in the Trump-Russia probe. The researcher, Igor Danchenko, has pleaded not guilty and is set to go on trial in October in federal court in Alexandria, Va.
In 2020, Durham obtained a guilty plea from a former FBI attorney, Kevin Clinesmith, to a charge that he deliberately altered an email used to obtain secret-court surveillance warrants against Carter Page, an energy analyst who had formerly served as a foreign policy adviser to the Trump campaign.
Clinesmith conceded altering an email he received and forwarded, but insisted that he believed the information he inserted was true. Durham’s team urged that Clinesmith receive between three and six months in prison, but a judge sentenced him to one year of probation instead.
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