Tale of two trials: How Sussmann is receiving every consideration denied to Flynn

The criminal trial of Clinton campaign lawyer Michael Sussmann began this week with a telling warning from prosecutors to the D.C. jury: “Whatever your political views might be, they cannot be brought to your decisions.” The opening statement by Deborah Brittain Shaw reflected the curious profile of the Sussmann case. Prosecutors ordinarily have a massive advantage with juries despite the presumption of innocence. When pleas are counted, federal prosecutors can report as high as 95 percent conviction rates. However, with Sussmann, prosecutors clearly have concerns over whether they, rather than the defendant, will get a fair trial.

Sussman’s trial for allegedly lying to the FBI is being heard in the same District of Columbia federal courthouse where former Trump national security adviser Michael Flynn and others faced the very same charge brought by another special counsel.  

The cases, however, could not be more different. 

Whereas Flynn’s prosecution was a no-holds-barred affair, Sussmann’s prosecution has been undermined by a series of unfavorable rulings by the court. Special prosecutor John Durham still may be able to eke out a conviction, but the difference in the treatment of Trump and Clinton associates is striking. 

Sussmann is charged under 18 U.S.C. 1001 with lying to the FBI during a meeting with then-FBI general counsel James Baker when he came forward with what he claimed was evidence of possible covert communications between the Trump Organization and Alfa, a Russian bank. Sussmann allegedly concealed that he was representing the Clinton campaign, which he billed for his efforts. 

Shaw told the jury that the FBI “should not be used as a political tool for anyone — not Republicans. Not Democrats. Not anyone.” She then added that the jurors themselves should not use this trial for their own political judgments.  

Looking at the jury box, one can understand Shaw’s unease. During jury selection, one juror admitted he was a Clinton donor and could only promise to “strive for impartiality as best I can.” Prosecutors objected to his being seated, but Judge Christopher Cooper overruled them. 

In another exchange, a former bartender and donor to far-left Rep. Alexandria Ocasio-Cortez (D-N.Y.) was told by a Sussmann defense lawyer that neither Clinton nor Trump were on trial and then asked if she could be impartial. She responded, “Yes, knowing that” — which might suggest she would not be impartial if the campaigns were part of the trial. 

Other jurors include a woman who said she thought she was a Clinton donor but could not remember; a juror whose husband worked for the Clinton 2008 campaign; and a juror who believes the legal system is racist and police departments should be defunded. 

To be sure, D.C. voters chose Clinton over Trump in 2016 by a breathtaking margin: 90.9 percent to 4.1 percent. While liberal and Democratic jurors still can be fair and impartial, Judge Cooper has seated a couple jurors who seemed to struggle with the concept of impartiality. 

The most notable aspect of the trial is what will be missing: context. Durham contends that Sussmann was no rogue lawyer. After the Mueller investigation, Durham’s team revealed information about how people affiliated with the Clinton campaign allegedly funded, developed and spread the false collusion claim. 

On July 28, 2016, then-CIA Director John Brennan briefed President Obama on Hillary Clinton’s alleged plan to tie Donald Trump to Russia as “a means of distracting the public from her use of a private email server.” Obama reportedly was told how Clinton allegedly approved “a proposal from one of her foreign policy advisers to vilify Donald Trump by stirring up a scandal claiming interference by the Russian security service.” That was three days before the FBI’s collusion investigation was initiated. 

This appears to have been an all-Washington effort assisted by key figures associated with a liberal think tank, Democratic members of Congress and allies in the media. However, it was the role of lawyers like Sussmann that attracted Durham’s interest.  

Durham contends that, in addition to allegedly lying to Baker during their meeting, Sussmann sent a text message to Baker the night before the meeting, reading: “Jim — it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. 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.” 

Notably, the campaign’s law firm was accused by some journalists of hiding the campaign’s role in financing the infamous Steele dossier, which provided the basis for the collusion story. (The Federal Election Commission recently fined the campaign for using the firm to hide those payments.) The Durham team argued that Sussmann’s alleged lying to the FBI was not just some passing omission but a knowing pattern of deceit. That is why one of the first witnesses expected to be called by the prosecution was Marc Elias, Sussmann’s former law partner and the Clinton campaign’s general counsel. Elias is not charged with any crime, but at least one reporter has claimed Elias denied the campaign’s connection to the Steele dossier.  

Judge Cooper has stressed that this trial cannot be about the Clinton campaign per se, but the specific lie that was told. He specifically barred Durham from arguing that there was a “joint venture” in deception with the Clinton campaign. The judge sharply limited the evidence that Durham can present which, in the words of Politico, “spares the Clinton campaign and the Democratic National Committee … potential embarrassment.”  

Without the broader context, the prosecution could sound like a play without a plot — just characters and insular acts. The first witnesses included FBI agents who told the jury that the claims passed along by Sussmann “didn’t make sense” and that the collusion theory was rejected within days of looking at the underlying data. However, Cooper warned that he will keep a tight rein on prosecutors delving into how the underlying data was produced or managed through the campaign.

That is not the only blow delivered to the prosecution by the court. The judge refused prosecution access to some evidence and, while allowing access to some emails between the campaign and an opposition-research firm, he barred their introduction at trial due to the late request from the prosecutors.  

The treatment given to Sussmann is in stark contrast to how Trump associates were treated in this same court. In the Flynn trial, Judge Cooper’s colleague, Judge Emmet Sullivan, conducted a series of bizarre hearings, including one in which he used the courtroom flag as a prop to accuse Flynn of being an “unregistered agent of a foreign country while serving as the national security adviser” and to suggest that Flynn could be charged with treason — crimes not brought against him. Sullivan then declared: “I cannot assure you that if you proceed today, you will not receive a sentence of incarceration. I am not hiding my disgust and my disdain.” 

Likewise, another judicial colleague, Judge Amy Berman Jackson, refused to grant Trump associate Roger Stone a new trial despite disturbing reports of juror bias. 

While the judge in Flynn’s case was eager to remove obstacles from the prosecution’s path, the judge in Sussmann’s case seems to have created a virtual obstacle course for Durham. Durham may be able to jump the legal hurdles, but he will do so without much of his evidence. To paraphrase Charles Dickens in “A Tale of Two Cities,” for a prosecutor D.C. can be the best of venues or it can be the worst of venues.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.