Sussmann-Durham trial: What you need to know ahead of opening arguments, first day of testimony

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What We Have Learned From the Durham Investigation

Paul Gigot interviews Wall Street Journal columnist Kim Strassel

WASHINGTON, D.C. — Opening arguments are set to be presented by both the government and Michael Sussmann’s defense team Tuesday morning in federal court, as the first full day of the first trial out of Special Counsel John Durham’s years-long investigation into the origins of the Trump-Russia probe begins.

The government is set to present its argument first, beginning at 9:00 a.m. at the U.S. District Court for the District of Columbia. Federal prosecutor Deborah Brittain Shaw is set to deliver the opening argument for the government, which is expected to last approximately 20 minutes.

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Representing the government are Shaw and federal prosecutors Andrew DeFillippis, Michael Keilty, and Jonathan Edgar Algor IV.

Representing Sussmann are defense attorneys Sean Berkowitz, Michael Bosworth, Catherine Yao, and Natalie Hardwick Rao.

Sussmann is charged with making a false statement to the FBI and has pleaded not guilty.

The jury was seated on Monday, and includes one federal government employee who told the judge they donated to Democrats in 2016 and another government employee who told the judge they "strongly" dislike former President Trump—both of those jurors told the judge they could be impartial throughout the trial. The jury also includes a teacher, an illustrator, a mechanic, and more.

The overwhelming majority of jurors selected told U.S. District Judge Christopher Cooper, who is presiding over the trial, that they had not heard of the case prior to jury service.

Special Counsel John Durham himself was in the courtroom for the nearly eight hours of jury selection on Monday.

"Picking a jury is more of an art than a science," Cooper said Monday, urging the individuals who were not selected to serve on the jury to "take nothing from the fact that you’re being excused."

Cooper, in dismissing the jury Monday evening, instructed jurors against doing "any independent research about the case," and instructed them not to discuss the case even amongst fellow jurors.

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

The government is expected to call several witnesses to testify after opening arguments Tuesday, including former Clinton lawyer Marc Elias, who formerly served with Sussmann at Perkins Coie.

Perkins Coie is the law firm through which the Democratic National Committee (DNC) and the Clinton campaign funded the notorious anti-Trump dossier.

Christopher Steele, a former British spy who wrote a 2016 dossier about alleged links between Donald Trump and Vladimir Putin, leaves the High Court in London following a hearing in the libel case brought against him by Russian businessman Aleksej Gubarev.  (Aaron Chown/PA Images via Getty Images)

The unverified dossier, which contained allegations of purported coordination between Trump and the Russian government, was authored by Christopher Steele, an ex-British intelligence officer, and commissioned by opposition research firm Fusion GPS.

Cooper acknowledged Monday that Elias had testified before the grand jury as part of the government’s case, but said he had not yet read his grand jury testimony.

The government is also expected to call two FBI special agents to testify Tuesday.

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With regard to COVID-19, Cooper warned the prosecution and the defense to take care when outside the courtroom, due to rising cases of coronavirus in Washington, D.C.

"We may have to take a break, or even worse," Cooper warned, should someone involved in the case test positive.

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

Former U.S. Secretary of State Hillary Rodham Clinton waves to the audience onstage before "An Evening with President Bill Clinton and former Secretary of State Hillary Rodham Clinton" at Park Theater at Park MGM on May 05, 2019, in Las Vegas, Nevada.  (David Becker/Getty Images)

Durham and the government allege that Sussmann lied in the meeting, "falsely stating to the general counsel that he was not providing the allegations to the FBI on behalf of any client."

Durham, in a filing in the weeks leading up to the trial, said "the night before the defendant met with the general counsel, the defendant conveyed the same lie in writing and sent the following text message to the general counsel’s personal cellphone."

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"Jim — it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss," the text message stated, according to Durham. "Do you have availability for a short meeting tomorrow? I’m coming on my own — not on behalf of a client or company — want to help the Bureau. Thanks."

Baker replied: "OK. I will find a time. What might work for you?"

Durham in February first revealed that the government would attempt to establish at trial that among the data "exploited" was domain name system (DNS) internet traffic relating to "a particular healthcare provider, Trump Tower, Donald Trump's Central Park West apartment building and the Executive Office of the President of the United States (EOP)."

FILE - In this Dec. 12, 2020, file photo, President Donald Trump walks on the South Lawn of the White House in Washington before boarding Marine One. (AP Photo/Patrick Semansky, File)

In February, Durham said data was exploited "by mining the EOP's DNS traffic and other data for the purpose of gathering derogatory information about Donald Trump," adding that the data was used to establish "an inference" and "narrative" tying Trump to Russia.

Durham also alleges that Sussmann in February 2017 provided an "updated set of allegations," including the Alfa Bank claims, and additional allegations related to Trump, to a second U.S. government agency, which Fox News has confirmed was the CIA.

Cooper has said the prosecution can present evidence and question witnesses about the DNS data but has limited the evidence that Durham and the prosecution can present against Sussmann during trial.

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The prosecution has argued that Sussmann desired to conceal a "joint venture" with the Clinton campaign, which Cooper wrote that the prosecution claims "supplied a motive" for Sussmann to "misrepresent" to Baker "that he was not providing the data to the FBI on behalf of any client, when he was actually representing both Mr. Joffe and the campaign." 

That was a reference to tech executive Rodney Joffe, who has not been named in Durham’s filings and has not been charged with a crime.

Sussmann’s defense has denied he had an attorney-client relationship with the Clinton campaign that covered activities related to the Alfa Bank data.

Durham was tapped in 2019 by Attorney General Bill Barr to investigate the origins of the FBI’s original investigation into the Trump campaign, which led to the appointment of Robert Mueller as special counsel.

In this May 29, 2019, file photo, special counsel Robert Mueller speaks at the Department of Justice Wednesday, in Washington, about the Russia investigation. (AP Photo/Carolyn Kaster, File)

At the time, Durham was serving as U.S. attorney for Connecticut.

Mueller's investigation yielded no evidence of criminal conspiracy or coordination between the Trump campaign and Russian officials during the 2016 presidential election.

In October 2020, Barr appointed Durham as special counsel to ensure that he would be able to continue his investigative work — regardless of the outcome of the 2020 presidential election.

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Durham has indicted three people as part of his investigation: Sussmann in September 2021, Igor Danchenko in November 2021 and Kevin Clinesmith in August 2020.

In a special counsel scope order, Barr wrote that Durham "is authorized to investigate whether any federal official, employee or any other person or entity violated the law in connection with the intelligence, counter-intelligence or law-enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, III."

Under U.S. code, the special counsel would produce a "confidential report" and is ordered to "submit to the Attorney General a final report, and such interim reports as he deems appropriate in a form that will permit public dissemination."

Meanwhile, Cooper, who is presiding over the trial, was appointed by former President Barack Obama in 2014 and received unanimous confirmation by the U.S. Senate.

Early in his career, Cooper served in the Justice Department, and later joined private practice. Cooper worked in private practice for nearly two decades, and specialized in defending clients in white-collar criminal matters.