- The first trial from John Durham's special counsel inquiry kicked off with opening arguments.
- A prosecutor said lawyer Michael Sussmann lied to the FBI to "inject" it into the 2016 election.
- Sussmann's defense team said he never lied to the FBI and never would.
Donald Trump spent his final months in the White House seeking vindication, predicting that a special counsel would prove ahead of the 2020 election that the Russia investigation was rooted in a "deep state" conspiracy.
But no such word ever came from John Durham, the special counsel examining the origins of the Trump-Russia inquiry. In March 2021, over a month after leaving office, Trump was apparently still smarting over the silence when he released a statement asking, "Where's Durham? Is he a living, breathing human being? Will there ever be a Durham report?"
Durham has given proof of life. More than a year after Trump's sarcastic statement, Durham emerged this week to sit in on the first trial stemming from his special counsel office's three-year investigation.
A jury in Washington, DC, heard opening arguments Tuesday in the trial of Michael Sussmann, a onetime lawyer for the Hillary Clinton campaign, who stands charged with lying to the FBI during a 2016 meeting about possible links between Trump and Russia. The opening arguments painted dueling portraits of Sussmann, a former federal prosecutor and onetime partner at the law firm Perkins Coie with contacts at the highest levels of the law enforcement and intelligence communities.
In a 20-minute opening argument, a prosecutor from Durham's office said Sussmann falsely told the FBI's general counsel at the time, James Baker, that he was not acting on behalf of any client when he presented odd internet data showing communications between servers connected to the Trump Organization and Alfa Bank, a Kremlin-linked financial institution. The prosecutor, Brittain Shaw, said Sussmann was actually working on behalf of the Clinton campaign but concealed that client relationship to give his tip more credibility, in hopes of kicking off an investigation that would "inject the FBI into a presidential election."
Sussmann lied, she said, to "direct the power and resources of the FBI to his own ends, to serve the agendas of his clients."
A defense lawyer for Sussman, Michael Bosworth, told jurors flatly that Durham's theory for the case "doesn't make sense."
At the time of the 2016 meeting, he said, the Clinton campaign wanted media coverage of the internet research showing a possible communications backchannel between the Trump Organization and the Russian bank. But the FBI looked into the supposed link and determined it was unsubstantiated.
Sussmann, he said, met with Baker so the FBI would not be caught flat-footed by a story the New York Times was preparing to publish.
"He went to the FBI to help the FBI," Bosworth said.
"This meeting was the opposite of what they wanted," he added, referring to the Clinton campaign.
The trial is expected to feature testimony from FBI agents, Baker and prominent Democratic figures, including former Clinton campaign manager Robby Mook and the campaign's general counsel, Marc Elias, a former Perkins Coie partner and leading voting rights advocate.
For Durham's office, the trial comes with high stakes. An acquittal would fuel questions about the cost and purpose of the inquiry, which commenced in the spring of 2019. (In October 2020, then-Attorney General William Barr conferred special counsel status on Durham, a move that has preserved the investigation into the Biden administration.)
A guilty verdict would almost surely galvanize Trump and his supporters, who have long looked to Durham to uncover evidence of bias and a "deep-state" plot against the former president.
But, in the Sussmann case, Durham's office has presented the FBI as the victim — "used and manipulated," as Shaw put it Tuesday, to deliver an "October surprise" that would harm Trump.
"We are here because the FBI is our institution. It should not be used as a political tool for anyone — not Republicans, not Democrats, not anyone," she said.
An earlier prosecution resulted in Kevin Clinesmith, a former FBI lawyer, pleading guilty in 2020 to altering an email that federal authorities relied on to renew court-authorized surveillance of former Trump advisor Carter Paige. Clinesmith was sentenced in January 2021 to 12 months of probation.
In another case, Durham's office charged Russia analyst Igor Danchenko with lying to the FBI. Danchenko was a source for the so-called Steele dossier — a since-discredited compilation of opposition research about purported links between Trump and Russia — and he is set to stand trial later this year.
In Sussmann's case, Durham is expected to call Baker, the former FBI general counsel, as a star witness. But in the opening argument, Bosworth highlighted past testimony from Baker in which he could not recall portions of the 2016 meeting with Sussmann.
"You will see Mr. Baker's memory is [as] clear as mud," Bosworth said.
Sussmann has not just denied lying to the FBI. His defense team has raised a legal argument that, even if he did lie, the false statement made no difference because the FBI was well aware that he represented the Clinton campaign, the Democratic National Committee, and Rodney Joffe, a tech executive involved in the internet research.
Ahead of the trial, Sussmann's defense team and legal experts noted the extensive detail of court filings from the Durham team. Conservative news outlets have picked up on the filings as evidence of nefarious conduct by the Clinton campaign, but the narratives have often been inaccurate.
In the detail of the charging papers against Sussmann, some legal experts saw a so-called "speaking indictment" intended to tell a broader story rather than lay out a single false statement offense.
Bosworth, in his final words to jurors Tuesday, described the prosecution as an "injustice."
"As jurors, you have the extra responsibility to do justice in this case. And as jurors, you have the extra responsibility to prevent injustice. This case is an injustice," he said. "And I expect when all of the evidence is in, you will agree."