Durham probe: Ex-FBI officials expected to take stand in Sussmann trial, as defense plans to argue a mistrial

WASHINGTON – Former FBI general counsel James Baker is expected to take the stand again Thursday morning in U.S. District Court in the District of Columbia as part of the trial of Michael Sussmann for continued questioning from Special Counsel John Durham’s team and the defense.

The government is also expected to call former FBI officials Bill Priestap and Trisha Anderson to the stand for questioning.

Priestap served as the FBI’s assistant director for counterintelligence from 2015 to 2018. Anderson was the bureau’s principal deputy general counsel of national security.

Fox News reported earlier this year that Priestap had testified before the grand jury impaneled as part of Durham’s years-long investigation into the origins of the Trump-Russia probe.

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Sussmann’s defense, late Wednesday, signaled its intent to motion for a mistrial Thursday morning – a request U.S. District Judge Christopher Cooper, who is presiding over the trial, said he is “not inclined” to grant.  

Sussmann’s attorney, Sean Berkowitz, on Wednesday afternoon said he planned to argue for a mistrial on Thursday, due to a back-and-forth that came from the hours-long questioning and testimony of former Clinton campaign general counsel Marc Elias.

At one point during cross-examination by the defense, Elias was asked whether Sussmann went to the FBI in September 2016 with data alleging a covert communications channel between Donald Trump and Russia’s Alfa Bank on behalf of the Hillary Clinton campaign.

“I think you’d have to ask Mr. Sussmann,” Elias said.

Later, the prosecution brought Sussmann’s response up – a move the defense said violates Sussmann’s rights.

Cooper on Wednesday, though, said the defense “should be prepared to deal with witnesses [tomorrow], and said he is “not inclined to grant a mistrial.”

Meanwhile, the government is expected to begin the day Thursday by questioning Baker, who falls at the center of the trial.

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Sussmann has been charged with making a false statement to the FBI when he told Baker in September 2016, less than two months before the presidential election, that he was not doing work “for any client” when he requested and attended a meeting where he presented “purported data and ‘white papers’ that allegedly demonstrated a covert communicates channel” between the Trump Organization and Alfa Bank, which has ties to the Kremlin.

Durham’s team alleges Sussmann was, in fact, doing work for two clients: the Hillary Clinton campaign and a technology executive, Rodney Joffe. Following the meeting with Baker, Sussmann billed the Hillary Clinton campaign for his work.

Sussmann has pleaded not guilty to the charge. 

Baker first took the stand Wednesday afternoon, and explained that the 2016 meeting was initially requested by Sussmann via text message to his personal phone on Sept. 18, 2016.

Durham, in a filing in the weeks leading up to the trial, referenced these text messages, saying “the night before the defendant met with the general counsel, the defendant conveyed the same lie in writing and sent the following text message to the general counsel’s personal cellphone.”

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Baker testified that he had forgotten about the text conversation and found it in response to a request from the government earlier this year. Baker said that in March, Durham asked him to “look for” emails and other communications he may have had with Sussmann.

“I’m not out to get Michael and this is not my investigation, it’s yours,” Baker said to the prosecution. “Nobody had asked me to go look for this material before that.” 

Baker testified that upon finding the text messages, he notified the government through his attorney “as quickly as I could,” and said FBI agents “came to my house” that same afternoon.

Baker explained his relationship with Sussmann, saying the two were “friends” who had kept in contact, but testified that he was “a bit surprised” to receive the texts.

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“I was a bit surprised to get it from Michael, kind of wondered how he got my personal cell number, but Michael is a friend so it didn’t really freak me out,” Baker testified. “I trust Michael, it seemed to me at the time it was very important and so I thought I should meet with him right away.”

The government presented the text messages to the jury for consideration Wednesday.

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.

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Baker on Wednesday explained that he thought Sussmann could have a badge to admit him into the FBI headquarters due to the work he often did with clients and law enforcement.

Durham’s team, in its opening statement Tuesday, argued that the Sussmann case is one focused on “privilege.” 

“Privilege of a lawyer who thought he could lie to the FBI without consequences; privilege of a lawyer who thought that for the powerful, normal rules didn’t apply,” government prosecutors argued on behalf of the government.

The government argued that in bringing the “serious allegations” to the FBI, Sussmann “bypassed normal channels and went straight to the FBI’s top lawyer,” referring to Baker.