Durham prosecution faces hurdles in D.C. court

For Special Counsel John Durham, obtaining an indictment of D.C. lawyer Michael Sussmann for allegedly lying to the FBI during its investigation into the Trump campaign and Russia may turn out to be the easy part.

Getting a Washington jury to convict Sussmann could be far harder, judging by a case with significant parallels: the 2019 prosecution of former Obama White House counsel Greg Craig.

Craig, too, went to trial on a single felony false-statement count unaccompanied by any other substantive charge. The case had strong political overtones and came down, largely, to a swearing contest between the defendant and a longtime government lawyer.

It took the jury less than five hours to acquit Craig after a two-and-a-half-week trial, with some jurors saying they suspected politics were at work in the decision to go after the longtime Democratic lawyer.

Sussmann’s case could produce similar sentiments. Prosecutors contend that the former Perkins Coie partner — who left the firm on Thursday — was working for Hillary Clinton’s campaign and the Democratic National Committee at the time of a September 2016 meeting with the FBI’s top lawyer. According to the indictment, Sussmann lied to the bureau by claiming that he wasn’t speaking to them on behalf of any client.

The similarities go further, with both cases turning on murky memories of an in-person meeting that was not recorded or transcribed, as well as questions about whether the defendants were acting on their own accord or on behalf of others who were running up multi-million-dollar legal bills.

The stakes of Sussmann’s case go well beyond his own fortunes: A conviction could buttress former President Donald Trump’s claims that the Russia probe was illegitimate and politically motivated. Conversely, an acquittal would suggest Durham’s investigation had turned up little wrongdoing.

During a brief appearance in federal court in Washington on Friday, Sussmann pleaded not guilty through one of his attorneys and was released on $100,000 bond.

Sussmann's attorneys declined to comment on the parallels to Craig’s case or on the proceedings Friday. However, they argued in a statement Thursday that politics infected the decision to charge Sussmann.

“Michael Sussmann was indicted today because of politics, not facts,” said defense attorneys Sean Berkowitz and Michael Bosworth. “This case represents the opposite of everything the Department of Justice is supposed to stand for. Mr. Sussmann will fight this baseless and politically inspired prosecution.”

Sussmann’s lawyers did not expand on their claims about political motivations, but they implied that Durham — a career prosecutor given special counsel status last year by Attorney General Bill Barr — was falling in line with Trump’s public demands that Durham’s inquiry into the origins of the Trump-Russia probe show some concrete results beyond the guilty plea secured last year from a low-level FBI attorney who admitted to doctoring an email.

Despite Durham’s special-counsel appointment, Attorney General Merrick Garland could have halted Sussmann’s indictment. But doing so would have triggered a report to Congress and an inevitable political firestorm.

Former U.S. Attorney Joyce White Vance said she suspects Garland decided to defer to career prosecutors about whether to file the case.

“There were undoubtedly equities that weighed in in favor of permitting a career person to make charging decisions,” Vance said.

Vance also said she thinks prosecutors may struggle to obtain a guilty verdict against Sussmann “unless the evidence in this case is much better than reported.”

Vance called the charge “a very difficult one to understand, especially when compared to other cases involving false statements in court or to Congress that DOJ has passed on prosecuting.”

Sussmann’s case revolves around an exchange with James Baker, the FBI’s general counsel at the time, at the bureau’s headquarters. Baker took no notes, although an FBI colleague who did not attend the session wrote down that Baker said Sussmann said he wasn’t coming forward on behalf of any client in relaying the information about possible computer links between Trump and a Russian bank.

Craig’s prosecution turned in large part on his statements at a meeting with staffers from the Justice Department’s Foreign Agent Registration Act unit in October 2013. At issue was Craig’s work on a report for Ukraine’s Ministry of Justice about the country’s handling of the trial of a former prime minister, Yulia Tymoshenko.

While more people attended that meeting, including two of Craig’s colleagues at law firm Skadden Arps, recollections of what was said varied. One of Craig’s colleagues took notes, but no notes taken by government officials were ever found.

Some longtime legal analysts said prosecutors can misjudge the strength of cases involving allegations of false statements to government investigators.

“You can work yourself up into a rage if you think someone is lying to you, even if the evidence is weak,” said Stuart Taylor, a former New York Times reporter, attorney and friend of Craig.

Craig’s billing became an alibi of sorts at his trial. Prosecutors said it was evident that the whopping $4.6 million Craig’s firm was paid — largely from a Ukrainian oligarch — for the report, motivated his work. The PR effort included his drive to preview the report for a prominent New York Times reporter, David Sanger, and discussions with other journalists.

However, Craig maintained at trial that he was protecting his own interests and that of his firm — not his client — in reaching out to Sanger and others. To buttress his claim, Craig testified that he did not bill Ukraine for the time spent talking to Sanger or other reporters.

“Did you charge the Ministry of Justice for any of the time you spent talking to journalists?” defense attorney William Taylor asked.

“No,” Craig said. “I was not working for Ukraine at that moment.”

Sussmann’s case could trigger a similar dispute. The grand jury indictment prepared by Durham’s prosecutors contends Sussmann billed the Clinton campaign for his discussion with the FBI’s Baker, but Sussmann’s lawyers have taken issue with that.

A more fundamental question surrounding both cases is whether jurors will take a false-statement charge seriously in the absence of some other charged crime.

During opening statements in the Craig case, Taylor drew a rebuke from the judge for seeking to minimize the false-statement charge by telling jurors it “was not a case about stealing or assault or even bribery.”

Sussmann’s attorneys are already challenging Durham’s claims surrounding the case, including the indictment’s suggestion that Sussmann intentionally relayed inaccurate or unreliable information in order to build an anti-Trump “narrative.”

“The Special Counsel appears to be using this indictment to advance a conspiracy theory he has chosen not to actually charge,” Berkowitz and Bosworth wrote. “Stripped of its political bluster, innuendo, and irrelevant details, what is striking about the allegations in the indictment is how few of them actually relate to the charge the Special Counsel chose to bring.”

While the similarities are striking, there are differences between the cases.

While Craig was charged under the same false-statement statute, he was not technically charged with making a false statement. Instead, prosecutors accused him of violating a prong of the law that prohibits schemes aimed at deceiving the government.

Craig also carried with him a reputation and history few lawyers in Washington would be able to muster. At his trial, his lawyers boasted of their 74-year-old client’s half-century of work, including stints registering African American voters in the South during the civil rights movement. The judge allowed Craig to call four character witnesses, including a retired Georgia judge who worked on anti-war efforts with Craig in the 1960s.

Sussmann, 57, enjoys a strong reputation as a former federal prosecutor and cybersecurity expert, but is unlikely to receive the outpouring of support Craig had at his trial.

However, Sussmann has some advantages Craig did not. A D.C. jury is unlikely to see Sussmann’s clients — the Democratic National Committee, Hillary Clinton’s campaign and a technology expert — as nefarious forces. Craig’s lucrative work for Ukraine, by contrast, was viewed as unwise by some of his allies in human rights circles and aligned him with figures like GOP lobbyist Paul Manafort.

Some lawyers observing the Sussmann saga have also compared it to the Justice Department’s prosecution of former Sen. John Edwards on charges stemming from nearly $1 million in expenses his supporters paid for a campaign videographer who became pregnant with Edwards' child following an extramarital affair.

That case was championed by a Republican U.S. attorney, George Holding, who pressed for Edwards’ indictment early in the Obama administration. Although many legal experts and former prosecutors viewed the case as flawed, rejecting the charges would have led to a political spectacle, much like the one that would have erupted if Garland rejected Durham’s proposed indictment of Sussmann.

Obama appointees ultimately approved the case against Edwards, but at a 2012 trial a North Carolina jury deadlocked on most charges. The Justice Department quickly decided not to conduct a retrial.

Holding resigned shortly after Edwards was indicted. Capitalizing on the publicity, the former prosecutor ran for Congress and won election to the House. He served for four terms, but declined to run for reelection last year.