Sussmann acquitted on charge brought by special counsel Durham

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 about 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.

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.

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.”

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 probe. 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.