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The Brief: Despite Evidence of Clinton Lawyer’s Guilt, Durham Faces an Uphill Battle with a DC Jury

Gregg is joined by David Schoen civil liberties attorney and former counsel for President Trump

Michael Sussmann
Michael Sussmann

If a Democrat Party activist is dead-bang guilty of a crime, where would he want the case against him tried?  Hands down, it’s Washington DC.  Jurors there are overwhelmingly liberal and routinely treat Republicans as if they all belong in a leper colony.

Clinton Campaign lawyer Michael Sussmann is counting on that political bias to…ahem… trump his dire legal reality.  Special counsel John Durham has marshaled a compelling case that the defendant lied about his client when he peddled phony evidence to the FBI that Donald Trump colluded with Russia.  But getting the jury to see beyond their partisan blinders will be a herculean challenge for the prosecution.  Even if they do see it, will they follow the law?  Don’t count on it.

The criminal trial opened on Monday in the DC federal court with jury selection.  For Sussmann, picking a favorably predisposed panel is like a rigged carnival game. Good luck Durham.  He’s not battling a lame defense so much as fighting the phenomenon known as “jury nullification” where twelve citizens perversely choose to ignore obvious guilt to acquit the accused.  In the nation’s capital, jurors have refused to convict simply out of spite or their own prejudices.  Jurors have the unfettered power to do as they please.

I’m not predicting that the defendant will walk in the face of damning evidence.  But if I were a betting man…

This is precisely why the defense has asked the presiding judge to advise the jury that the defendant was working against Trump.  The Honorable Christopher Cooper, an Obama appointee, doesn’t really need to say it.  Sussmann’s lead lawyer will make sure that it’s drilled into their brains the moment he addresses the jury during opening statements.  He may as well come out and say, “If you hate Trump –and I’m sure that all of you intelligent jurors do– then you must vote not guilty.”

That will be the not-so-subtle incendiary message being conveyed throughout the trial. Count on it.  Because unabashed fear and loathing of conservatives among Washington’s 700,000 residents is endemic.  Registered Republicans there are an endangered species. You’d have a better chance spotting a unicorn.

In the last presidential election, 92 percent voted for Joe Biden.  A scant 5 percent cast ballots for Trump, but I doubt they’d ever admit to it publicly.  That would be heresy in DC.  You’d find yourself tethered to a post with the smoky scent of kindling wafting through the air.

Durham had no choice but to try Sussmann in the District since that is where he allegedly committed the falsehood crime for which he is now on trial.  The special counsel was forced to play the hand he was dealt, although it comes from the bottom of the deck.  And sure enough, Democrats and Hillary Clinton supporters dominate the jury that was selected.  Attempts to remove them for bias were rejected by the judge.  No surprise there.

The U.S. District Court stands on Constitution Avenue, an irony if there ever was one.  It’s walking distance from the Supreme Court where, atop the West Pediment, the following words are inscribed, “Equal Justice Under Law.”  That may be the noble ambition, but in Washington it is not the practice –especially in politically animated cases.  Justice is dispensed according to your party bona fides. Advantage Sussmann.

If the defendant were tried in a neutral and fair venue, he’d be toast.  Slap on the cuffs and send him off to the hoosegow already. There is plethora of evidence that Sussmann lied to FBI general counsel James Baker when he said his bogus evidence of Trump-Russia collusion was being handed over to the agency on behalf of no specific client.  Michael was just being a good citizen.  Right.  In fact, the lawyer’s own records show that he billed the Clinton Campaign and a technology company to carry out his nefarious plot to frame Trump for something he did not do.

Sussmann was even foolish enough to put his deceit in writing by sending a text message to Baker stating,  “I’m coming on my own –not on behalf of a client or company—want to help the Bureau.”  There are also handwritten notes from two agents that confirm the lie.

So what is the defense?  First, that even if Sussmann lied, it wasn’t his intent to lie.  That’s known as the “whoops defense.”  Gee, I didn’t really mean to mislead or deceive the chief law enforcement agency in the U.S.  You know, kind of an accidental lie.  It was just a clumsy mistake or misstatement.  I sort of got confused and all tangled up.
Second, that the lie was not “material” (meaning important), as the law on false statements requires.  In other words, it’s just an itty-bitty lie of no real consequence.  That’s absurd to any reasonable person.  Had Baker known that Sussmann was working for Trump’s political opponent he would have recognized that it was nothing more than a political smear, which it was.  Enormous taxpayer money and resources would not have been devoted to chasing a ghost.

The third defense is equally ludicrous.  Sussmann claims the FBI eventually recognized that he was, indeed, working for a political campaign and misleading the agency.  So, as the argument goes, since the recipient of the lie (the FBI) ultimately recognized it was a lie, then it can’t be considered a genuine lie.  Got that?  You’d have to be a contortionist in logic to accept that whopper.

But the insanity of the defense is irrelevant.  To incite jury nullification, all Sussmann has to do is offer up an excuse.  Any pretext is good enough, however implausible or goofy.  Since the jury will be inclined to acquit, that’s all it may take.  In closing arguments, the defense attorney will argue that his client is the target of a politically motivated prosecution.  He’ll call it a “witch hunt.”  Guaranteed.

It’s a breathtaking role reversal.  It is manifest that Sussmann was instrumental in getting the FBI to launch its own “witch hunt” against Trump.  But now, his counsel will turn the tables by pretending that poor Michael is the innocent victim of Durham’s “witch hunt.”  That kind of argument demands a truckload of chutzpa.
If Sussmann skates, Hillary Clinton wins.  And that is probably what the Clinton-friendly jury wants.

Durham has spent three years uncovering a trove of ruinous evidence corroborating Hillary’s machinations to vilify Trump –a scheme that I described in detail in my two books, The Russia Hoaxand Witch Hunt.

Declassified documents show that it was none other than Hillary who invented the hoax to distract from her own email scandal.  She and her loyal lieutenants conjured up wholly fabricated stories of Russian collusion.  Then, they disseminated the fiction to the FBI and the Trump-hating media who spent years selling a despicable fiction while promising that it was true.  It was the greatest mass delusion in American political history.  It was also the worst case of media malpractice ever.

The centerpiece of the Hillary con was the “dossier” composed by the seedy Christopher Steele, who was being paid by the Clinton Campaign.  The ex-British spy pretended that his info came from reliable Kremlin insiders.  In fact, most of it came from Hillary lackeys like Charles Dolan Jr., Igor Danchenko and his college pal, Olga Galkina, who fed it to Steele.

The document Steele produced with no attribution or substantiation was always a sick joke.  Anyone with an ounce of intelligence knew it.  But unscrupulous morons in the media took it seriously and beat the hell out of the story to damage Trump. Notorious liars in the Democratic Party like Rep. Adam Schiff perpetuated the farce with their own lies.

The other part of Hillary’s illicit scheme was the accusation that Trump maintained a covert back-channel communication with Vladimir Putin through the use of a computer server housed in Trump Tower.  This is where Sussmann played a greater role, although his dirty fingerprints were all over the “dossier,” as well.  Acting at the behest of the Clinton Campaign, he recruited computer researchers to mine protected data that was then manipulated to make it appear as if Trump was interacting with Alfa Bank, a Kremlin-connected financial institution.

He wasn’t, of course.  It turns out the server was operated by a mass marketing email company that had nothing to do with Trump.  Tech executive Rodney Joffe honchoed the exploited data to curry favor with Clinton in exchange for a promised cyber job in her forthcoming administration, according to his own email.  He bragged that he was trying to impress VIPs by helping Hillary.  But his analytics were so obviously fake that even one of the assigned researchers penned an email warning: “The only thing that drives us at this point is that we just do not like (Trump).  This will not fly in the eyes of public scrutiny.  Folks, I am afraid we have tunnel vision.”  Ya think?
Sussmann didn’t care that the information he was handing over to the FBI was a disgraceful sham. That wasn’t the point.  The goal was to trigger an FBI counterintelligence investigation of Trump so that Hillary’s team could leak it to the compliant media.  The Bureau was a political tool.  During opening statements, the prosecutor said, “He (Sussmann) told a lie that was designed to achieve a political end, a lie that was designed to inject the FBI into a presidential election.”
Hillary’s insidious intent was to create an “October surprise,” as the prosecutor explained it, to derail her adversary.  It worked like a charm.  When the story broke, Hillary pumped it out on the Internet just days before the 2016 election with a tweet attached to a published Slate article declaring, “It’s time for Trump to answer serious questions about his ties to Russia!”  Slate had been snookered.

You can almost envision Hillary popping champagne corks and cackling along with her minions saying, “We did it!  Those saps at the FBI and the gullible press swallowed our magnificent scam! I’m now destined for the Oval Office.  Let’s start measuring the drapes!”

But Clinton miscalculated the impact that her lie would have on voters.  She also misunderstood the breadth of her own unpopularity. She lost the presidency despite her malevolent deeds. Yet, Hillary wasn’t finished.  In an act of vengeance, she had her flunkies continue to push the collusion hoax to destroy her opponent when he took office.  If she couldn’t have the White House for herself, she was determined to drive Trump from it.

Durham has described Hillary’s chicanery as a “joint venture” with a host of others who were doing her bidding to mislead the FBI –not to mention the public– with false information.  That’s clearly a crime. It’s called conspiracy to defraud the government.  But Clinton has never been charged and she probably won’t.  How so?  She was cunning enough to set-up an information-laundering operation to distance herself from her dirty tricksters through an elaborate chain of people.  Unless someone in the chain breaks ranks and implicates Hillary personally, she’ll never be held accountable under the law.

Hillary was also clever in using lawyers like Sussmann to carry out her schemes.  Ever since the hoax was exposed, she’s been hiding behind the attorney-client privilege to conceal the incriminating evidence of her wrongdoing.

But that privilege did not protect the many emails exchanged between lawyers and the odious opposition research firm Fusion GPS run by the ever-sleazy Glenn Simpson. 

He’s the guy who hired Steele and helped him craft the phony “dossier.”  Simpson was also a key player in advancing the despicable Alfa Bank back-channel lie.  He, too, should be criminally prosecuted.  But so far, he has managed to evade the jaws of justice.

Judge Cooper seems determined to hide from the jury many of Clinton’s corrupt acts.  But to the extent that Sussmann was directly involved, Durham will still be able to sketch the broad landscape of how Hillary perpetrated one of the dirtiest tricks in political history… and got away with it.  Just like she got away with her many email crimes, thanks to another contemptible toady by the name of James Comey who also deceived the FISA Court to spy on the Trump campaign.

None of this may matter one whit in a Washington DC courtroom where jurors are prone to despise Donald Trump.  They may view Michael Sussmann as something of a hero, which he is decidedly not.  Their verdict may reflect that twisted sentiment.

I’m not predicting that the defendant will walk in the face of damning evidence.  But if I were a betting man…