Special Counsel Durham fails first courtroom test in his three-year probe

Updated May 31, 2022 at 1:14 PM ET

A jury in Washington, D.C., has acquitted lawyer Michael Sussmann on a single charge of lying to the FBI, dealing a blow to the three-year investigation by special counsel John Durham.

Jurors deliberated for six hours, spread over two days, before delivering the unanimous verdict to a courtroom filled with the defendant's family and members of the news media.

The jury forewoman, who did not give her name, told reporters outside the courthouse that "I think we could have spent our time more wisely."

"It didn't pan out in the government's favor and that's on them," she also said.

Durham's team was disappointed but respected the jury's decision, he said in a statement.

"I also want to recognize and thank the investigators and the prosecution team for their dedicated efforts in seeking truth and justice in this case," he said.

The Trump administration appointed Durham to probe the origins of the FBI's investigation into possible links between former President Donald Trump and Russia. This case amounted to the first courtroom test for Durham, a prosecutor known for going after mobsters and corrupt public officials. But his now three-year-long probe has not uncovered explosive evidence of wrongdoing by the FBI. Instead, in this case, the FBI was cast as a victim.

Sussmann told reporters outside the courthouse that he "told the truth to the FBI, and the jury clearly recognized that with their unanimous verdict today."

"Despite being falsely accused, I am relieved that justice ultimately prevailed in this case," he said, adding that it had been a "difficult year" for him and his family.

His lawyers, Sean Berkowitz and Michael Bosworth from the law firm Latham & Watkins, LLP, went further in a statement, saying the verdict "sends an unmistakable message to anyone who cares to listen: politics is no substitute for evidence, and politics has no place in our system of justice. "

The judge said not to relitigate the 2016 election, but political figures were key witnesses

The two-week trial featured witnesses with prominent political ties including election lawyer Marc Elias, former Clinton campaign manager Robby Mook, and several former FBI and Justice Department officials who served in key roles in 2016.

"We're not here to relitigate the 2016 election," Judge Christopher Cooper told the jury pool. "Donald Trump's not on trial. Hillary Clinton's not on trial."

But Durham's special counsel team had argued Sussmann wanted to deliver an October surprise that could change the outcome of the presidential election six years ago, by pushing the FBI to investigate questionable links between a Russian bank and a computer server tied to the Trump Organization. Federal agents testified the allegations lacked merit.

The single criminal count stemmed from a meeting Sussmann brokered with then FBI general counsel James Baker in September 2016, only weeks before the election. Sussmann was accused of lying to Baker about whether he appeared on behalf of Democratic clients such as the Clinton campaign or a technology executive named Rodney Joffe.

"No one should be so privileged as to be able to walk into the FBI and lie for political ends," prosecutor Brittain Shaw told the jury. "The FBI should never be used as a political pawn."

In the months before the trial, prosecutors belatedly asked Baker to sift through his electronics for relevant evidence. Baker found a text from Sussmann, who typed that he was coming on his own – "not on behalf of any client or company."

Because the material was discovered so late, Sussmann faced only a charge of lying about their in-person meeting the following day. On that essential question, Baker took no notes from the meeting and offered inconsistent testimony over the years. Defense lawyers pointed out that on the witness stand, Baker said he failed to remember things 116 times.

"Do you think Mr. Sussmann would throw his career away, his life away, to tell a lie to that guy?" asked defense attorney Michael Bosworth.

Prosecutors produced a Staples receipt for thumb drives they said Sussmann had billed to the Clinton campaign, as well as calendar entries and other bills from Perkins Coie, the law firm where the defendant had worked until his indictment.

The defense focused in on taxi receipts, apparently to and from the FBI meeting, which Sussmann had not billed to clients with Democratic ties.

The case has been closely watched as the first courtroom test for the Durham probe, launched by former Attorney General Bill Barr amid hostile tweets from then President Trump about the investigation into Russia's election interference in 2016.

Durham secured a guilty plea from an FBI lawyer who ultimately avoided prison time. Another one of his cases is scheduled to go to trial in Virginia later this year against Igor Danchenko, a Russian citizen and former think tank employee who faces five charges for allegedly lying to the FBI.

Danchenko, who is fighting the charges, is accused of lying about the sources of the information he provided to former British intelligence operative Christopher Steele, for what became the Steele dossier.

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