Clinton campaign lawyer Michael Sussmann could testify in his own defense beginning Thursday, his attorneys said, should the judge rule to bar government prosecutors from questioning him about pre-indictment negotiations between his counsel and Special Counsel John Durham’s office.
The defense filed a motion under seal Tuesday night, which requests that if Sussmann were to testify, the judge would rule to block the government from asking him questions during cross-examination about materials submitted to the government before charges against him were filed.
The materials in question were likely submitted to persuade the government not to move forward with its case, and its indictment of Sussmann.
U.S. District Judge Christopher Cooper is set to decide on that motion by Thursday morning.
Sussmann defense attorney Sean Berkowitz said Sussmann’s decision on whether to testify depends on Cooper’s ruling.
Should Sussmann testify, the government and defense will likely begin delivering their closing arguments next Tuesday. If Sussman does not testify, closings could be delivered this week.
Sussmann's attorneys contradict former FBI general counsel's testimony
Sussmann’s attorneys on Wednesday attempted to poke holes in Durham’s charge by bringing witnesses to the stand to testify in his defense.
Tashina Gauhar, a former official in the deputy attorney general’s office in 2016 and 2017, was the first defense witness called to the stand Wednesday.
Gauhar was asked about a meeting with several senior FBI and DOJ officials on March 6, 2017, which served as a briefing for then-Acting Attorney General Dana Boente about the Trump-Russia investigation.
Gauhar testified that then-FBI Deputy Director Andy McCabe was present for the meeting, as well as then-Assistant Director for the FBI’s counterintelligence division Bill Priestap, and his deputy, Peter Strzok. From the Justice Department, Boente, Gauhar and a senior official from the Justice Department’s national security division Mary McCord, as well as a number of other top staffers attended the meeting.
Defense attorneys showed the jury notes they say Gauhar took during that March 2017 meeting.
Gauhar testified that she did not remember the meeting, but said the notes appeared to be her own.
The notes showed that an "attorney" brought the "Alfa" matter to the FBI on "behalf of his client."
Durham has charged Sussmann with making a false statement to the FBI when he met with then-FBI General Counsel James Baker on Sept. 19, 2016. During that meeting, Sussmann brought two thumb drives and white papers which alleged a covert communications channel between the Trump Organization and Russia’s Alfa Bank. Sussmann allegedly told Baker that he was not bringing the information on behalf of any client, but rather as a citizen concerned with national security.
Sussmann has pleaded not guilty.
The defense also called Mary McCord, a former career prosecutor at the Justice Department. She served as the assistant attorney general for national security in 2017.
McCord testified Wednesday that she remembered being at the March 6, 2017 meeting, and recalled that McCabe briefed Boente on the Trump-Alfa Bank allegations.
McCord also took notes during that meeting, which state that the allegations came to the FBI from an "attorney" who "brought to Jim Baker and did not say who client was."
Sussmann’s defense stressed to the jury that these notes show that the FBI knew, and was telling their DOJ counterparts, that Sussmann came to Baker on behalf of a client, and that he did not lie to Baker, and that he did not say he was not there on behalf of any client.
The claims are in direct conflict with the testimony of James Baker who took the stand as a government witness last week. Baker testified that Sussmann told him during the Sept. 19, 2016, meeting that he was not there on behalf of any client.
The government also brought into evidence notes from Priestap, who met with Baker after the Sussmann meeting, and took notes that Sussmann was not bringing the allegations to the FBI on behalf of any client.
One key piece of evidence for the government’s case against Sussmann is a text message from Sussmann to Baker on the eve of their meeting, in which Durham’s team alleges Sussmann put his "lie in writing."
The text message stated: "Jim — it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss," the text message stated, according to Durham. "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."
Baker replied, "OK. I will find a time. What might work for you?"
Sussmann replied: "Any time but lunchtime you name it."
"2:00pm in my office? Do you have a badge or do you need help getting into the building?" Baker responded.
"I have a badge. Please remind me of your room #," Sussmann said.
The government, before resting Wednesday morning, showed the jury billing records that they say prove Sussmann billed the Clinton campaign for his FBI meeting.
On one of Sussmann’s bills, dated Sept. 19, 2016, the Clinton campaign is listed as the client, the time is listed as 3.3 hours, and the memo states: "work and communications regarding confidential project." Other testimony revealed Sussmann charged approximately $800 per hour.
Durham’s team also produced a receipt from a Staples near Perkins Coie in Washington, D.C., from Sept. 13, 2016. On the receipt was a two pack of flash drives.
The prosecution alleged the receipt was included in an expense report from Sussmann, and the billing code on the report connects the expense to the Clinton campaign as the client.
But during cross-examination of the government’s summary witness Kori Arsenault, a paralegal with Durham’s office, defense attorney Michael Bosworth noted that during meetings Sussmann had at the FBI in years prior, he would specifically make reference to the FBI in the bill's "memo" section.
Bosworth noted that the Sept. 19, 2016, bill only specifies "work and communication regarding confidential project."
"There’s no reference to the FBI in that entry is there?" Bosworth asked Arsenault.
"There is not," Arsenault answered.
The defense also brought two character witnesses to testify in defense of Sussmann Wednesday afternoon.