Sussmann Case Goes to Jury amid Difficult Ruling for Durham

The trial of former Hillary Clinton campaign lawyer Michael Sussmann concluded Friday and the jury began its deliberations. U.S. District Judge Christopher Cooper told jurors that he will not expect their verdict until next week following the long Memorial Day holiday weekend, as he will be outside of D.C. until then.

Sussmann is facing one count of making false statements to the FBI. The allegations stem from his meeting with FBI General Counsel James Baker in September 2016. In that meeting, Sussmann conveyed information he said indicated improper communications between the Donald Trump organization and agents of the Alfa Bank in Russia.

Sussmann allegedly misrepresented his position by lying about whether he was representing any client in asking for the meeting. He said that he was acting as a private citizen on his own behalf.

Special Counsel John Durham’s team of prosecutors introduced evidence that Sussmann was actually working on behalf of the Clinton campaign and billed it for his work in the FBI meeting.

Near the end of the case on Thursday, Judge Cooper dealt a damaging blow to Durham’s team. Cooper decided the prosecution would not be allowed to argue that a text message from Sussmann to Baker constitutes a false statement as charged.

Cooper ruled that prosecutors could only rely on evidence of Sussmann’s statements directly to Baker during their face-to-face meeting at Baker’s office.

In an opinion piece for Fox News, former federal prosecutor Andrew McCarthy said the text message is the actual “smoking gun” evidence showing Sussmann lied to the FBI. Sussmann had known Baker for many years at the time of the message.

He wrote in the text that he was “coming on my own – not on behalf of a client or company” and simply wanted to “help the Bureau.”

Because Durham’s investigators did not have the text message when Sussmann was indicted, it was not included in the formal pleadings used to charge Sussmann with the crime. The indictment only referenced the statements made during the in-person meeting between Sussmann and Baker.

The prosecution’s job of convincing the jury based only on the meeting became more difficult as a result of the ruling. The meeting with Baker was a friendly one-on-one meeting that was not recorded and does not have any independent notes. It was in the nature of a meeting between lawyers who know each other rather than a standard FBI criminal investigation.

Durham’s team was therefore left with only Baker’s recollection as its basis for proving a false statement beyond reasonable doubt. Sussmann did not testify at trial and therefore the jury does not have any direct proof from him about what was or was not said at the meeting.

By the time Durham’s team learned Baker had saved the text message, the five-year statute of limitations for the alleged crime had run. That created insurmountable hurdles for amending the charges in the case.

Prosecutors were still able to argue that the text message supports Baker’s recollections, but the message in and of itself cannot be considered as evidence of the alleged crime.

The nation now waits to learn if that was good enough for the jury to convict Sussmann.