Judge denies defense motion for mistrial; Sussmann testimony possible

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WASHINGTON, D.C. – The federal judge presiding over the case of Michael Sussmann denied the defense’s motion for a mistrial Thursday morning, as the defense left open the possibility for Sussmann to testify during trial. 

Sussmann’s attorney, Sean Berkowitz, argued for a mistrial on Thursday morning, due to a back-and-forth that came from the hours-long questioning and testimony of former Clinton campaign general counsel Marc Elias on Wednesday.

At one point during cross-examination by the defense, Elias was asked whether Sussmann went to the FBI in September 2016 with data alleging a covert communications channel between Donald Trump and Russia’s Alfa Bank on behalf of the Hillary Clinton campaign.

FBI LAWYER JAMES BAKER TESTIFIES HE'S 'NOT OUT TO GET’ SUSSMANN: 'THIS IS NOT MY INVESTIGATION, IT'S YOURS'

"I think you’d have to ask Mr. Sussmann," Elias said.

Photo of John Durham and Michael Sussmann.  Sussman pic:  Perkins Coie (Perkins Coie)

Later, the prosecution brought Sussmann’s response up — a move the defense said violates Sussmann’s rights.

Berkowitz, on Thursday morning, said Sussmann has not made a decision on whether he will testify during the trial, but motioned for mistrial.

The government argued that a mistrial is "not needed in this case," saying that Elias’s answer was a "non-responsive" one to a question asked by defense counsel.

U.S. District Judge Christopher Cooper denied the defense’s motion for a mistrial Thursday morning, but said the court is prepared to strike "non-responsive portions of the transcript," an action that he described as "routine."

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Sussmann is charged with making a false statement to the FBI when he told Baker in September 2016 — less than two months before the presidential election — that he was not doing work "for any client" when he requested and attended a meeting with Baker where he presented "purported data and ‘white papers’ that allegedly demonstrated a covert communicates channel" between the Trump Organization and Alfa Bank, which has ties to the Kremlin.

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Durham’s team alleges Sussmann was, in fact, doing work for two clients: the Hillary Clinton campaign and a technology executive, Rodney Joffe. Following the meeting with Baker, Sussmann billed the Hillary Clinton campaign for his work.

Sussmann has pleaded not guilty to the charge and his defense attorneys, prior to the beginning of trial, sought to have the case dismissed. Cooper denied their requests.