With trial set to begin in just over a week in a Washington D.C. federal court in the criminal case against Michael Sussmann, the former Clinton campaign attorney has revealed his defense strategy: put Donald Trump on trial for colluding with Russia.
Given the heavily slanted anti-Trump jury pool living in the district, it is no surprise that Sussmann’s defense team would seek to play on the Orange-Man-Bad sentiments likely living loudly in the eventual jurors. But a court filing from late yesterday reveals that Sussmann’s lawyers hope to make Trump and his supposed Russia affiliations a focus of the trial.
On Thursday, Sussmann and Special Counsel John Durham’s legal teams filed their respective objections to each other’s proposed trial exhibits. The Special Counsel’s office objected to three categories of exhibits Sussmann appears poised to present to the jury, including: (1) emails related to Sussmann’s work on cyber issues for the Democratic National Committee and the Clinton campaign; (2) notes taken by an FBI agent concerning his investigation of the Alfa Bank allegations and notes taken during a March 6, 2017 briefing by the FBI for the Department of Justice on various Trump-related investigations; and (3) a series of more than twenty news articles about Trump and Russia, which prosecutors listed in a table for the court.
The Special Counsel acknowledged there may be some relevance to the first two categories of trial exhibits, but prosecutors argued that Sussmann must nonetheless establish the documents do not constitute inadmissible hearsay. The third category of supposed evidence in the form of news articles, however, has “no evidentiary or factual basis,” according to Durham’s team.
Those articles, the Special Counsel noted in its court filing, “appear to relate to (i) the DNC hack, and/or (ii) Donald Trump’s purported illicit ties to Russia.”
“News articles regarding such matters are not themselves probative of the charged conduct in any way,” Durham explained. And “permitting the defense to admit the above-listed series of news articles would amount to the ultimate ‘mini-trial’ – of the very sort that will distract and confuse the jury without offering probative evidence,” the Special Counsel stressed in objecting to the admission of the twenty-some articles that date from May 14, 2016, to August 15, 2016.
The Special Counsel did not specify what that “mini-trial” would consist of, but a quick skim of the article titles makes clear Sussmann’s goal is to put Trump on trial for colluding with Russia.
From the first article, “Election 2016: Trump Goes His Own Way with Putin—Warm words and push to improve ties with Moscow aren’t shared by Obama, GOP rivals“, and onward, the media coverage Sussmann seeks to present to the jury consists of a tour de force of the press pushing the Russia collusion hoax. And as with the Alfa Bank hoax that Sussmann and Fusion GPS peddled to the press, much of the coverage Sussmann seeks to rely upon seems to find its roots in efforts by the Clinton campaign to seed the Trump-Russia story with friendly media.
For instance, The Time’s article Sussmann seeks to admit as evidence, entitled, “Donald Trump’s Man, Many, Many, Many Ties to Russia,” quotes Clinton campaign manager Robby Mook. Mook, of course, launched the entire Russia-collusion hoax live on CNN on the convention floor to distract from news that the DNC had worked to sabotage Bernie Sanders’ campaign.
Time Magazine’s coverage also relied on reporting by the Slate’s Franklin Foer. Emails since made public reveal Foer worked hand-in-glove with Fusion GPS to frame Trump as a Russian operative, with Foer eventually “breaking” the Alfa Bank story shortly before the 2016 presidential election.
The Washington Post’s similarly titled article, “Here’s what we know about Donald Trump and his ties to Russia,” pushed another pre-election conspiracy theory, implying that the Trump-connected Felix Sater was Russian mafia. To the contrary, since unsealed documents show Sater served as a vital asset to our intelligence community.
Sussmann nonetheless seeks to admit these and other articles at his trial, and his legal team will surely argue they are admissible because they will establish his concern over the Alfa Bank data and whitepapers was genuine. But, as Durham argues, the articles should nonetheless be excluded because of the “unfair prejudice” that will result.
“Unfair prejudice,” as the Special Counsel notes, results if there is “an undue tendency to suggest [making a] decision on an improper basis, commonly, though not necessarily, an emotional one.” Said otherwise, “evidence is unfairly prejudicial ‘if it appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case.”
Or, divorced from its legalese, prosecutors are complaining that Sussmann seeks to present to the jury “evidence” that Trump colluded with Russia so jurors will let Sussmann off scot-free. That the Clinton campaign pushed much of that other Russia-collusion coverage matters not to Sussmann because he knows it will be equally irrelevant to an anti-Trump jury.
But it should matter to the judge because Trump is not on trial and the visceral hatred of Trump and Putin — especially now with Russia’s war in Ukraine — make the articles framing Trump as a Russian stooge unfairly prejudicial to the prosecution.
So, watch for the court to exclude those exhibits, while allowing Sussmann to nonetheless argue he approached the FBI out of a genuine concern for our national security. And don’t be surprised if the D.C. jury buys it.
Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.
