The trial against Democratic cybersecurity lawyer Michael Sussmann kicked into high gear Tuesday morning, as prosecutors for special counsel John Durham accused him of "privilege."

The opening statements by the prosecution and defense Tuesday morning came after the jury was seated the prior evening.

Sussmann was charged with concealing his clients — Hillary Clinton's 2016 campaign and “Tech Executive-1,” known to be former Neustar executive Rodney Joffe — from FBI General Counsel James Baker when he presented since-debunked allegations of a secret back channel between the Trump Organization and Russia’s Alfa-Bank during a September 2016 meeting.

Durham prosecutor Brittain Shaw repeatedly said “the evidence will show that this is a trial about privilege” — likely a strategic choice of words since the case will probably be dominated by the Clinton campaign’s assertions of attorney-client privilege over key information.

Shaw said Sussmann was a privileged and high-powered D.C. lawyer who thought he could use his connections to get what he wanted and who believed “he could use the FBI as a political tool.”

She said the “evidence will show that he bypassed normal channels” to meet with Baker and “then sat across from that lawyer and he lied to him” with a falsehood “designed to achieve a political end.” The Durham prosecutor said Sussmann’s goal was to “inject” the FBI into a presidential election.

The prosecutor argued: “No one should be so privileged as to walk into the FBI and lie.”

Sussmann, who also helped the Democratic National Committee handle its response to the 2016 hack, denies wrongdoing, has pleaded not guilty, and unsuccessfully called upon the judge to dismiss the case, even relying in part on legal analysis by fired FBI agent Peter Strzok.

Michael Bosworth, one of Sussmann’s defense lawyers, declared in his opening statement: “Michael Sussmann didn’t lie to the FBI. Michael Sussmann wouldn’t lie to the FBI.”

Bosworth argued: “In the summer of 2016, this serious national security lawyer got information that raised serious national security concerns.”

He said that is why Sussmann wanted to go to the press about it and claimed his client only went to the FBI to give the agency a "heads up" about a possible impending New York Times story about the allegations.

Shaw said Sussmann saw the Alfa-Bank claims as a “golden opportunity to deliver a big win” for the Clinton campaign and Joffe.

The prosecutor also addressed “the proverbial elephant in the room” — everyone’s “strong feelings” about Russia, Donald Trump, Clinton, and the 2016 election.

She urged the jury to be apolitical in its decision-making, saying: “We are here because the FBI is our institution. It should not be used as a political tool by anyone. Not Republicans. Not Democrats. Not anyone.”

She said, “Whether we hate Donald Trump or love him,” no one should be able to lie to the FBI.

The prosecutor contended Sussmann’s actions were part of “a plan to create an October surprise on the eve of a presidential election” and to get the FBI to investigate, arguing the plan "largely succeeded." Shaw said Sussmann and Joffe “leaked the Alfa-Bank allegations to the New York Times,” and when that wasn’t published immediately, Sussmann brought a sense of urgency to the FBI about the media being on the verge of running a story. Shaw argued the FBI getting involved would make the story “more attractive” to the press.

Shaw said: “This was a breach of trust between a citizen and a law enforcement agency. … The FBI should never be used as a political pawn.”

Special counsel Robert Mueller, the FBI, the CIA, a bipartisan Senate Intelligence Committee investigation, and Durham’s team have all cast doubt on or rejected the Alfa-Bank claims touted by the Clinton campaign.

“The server was merely a spam email server,” Shaw said Tuesday. “The server did not reflect a crime, nor was it a threat to national security.” She said the real crime tied to this was Sussmann lying.

Baker, who was part of the Crossfire Hurricane investigation and left the FBI in 2018, was hired as deputy general counsel at Twitter and will be called by Durham as a key witness.

Durham argues Sussmann’s alleged lie to Baker was “material” and that it mattered. Sussmann argues he didn’t lie and, even if he had, it was immaterial.


Baker met with Bill Priestap, who was assistant director of the FBI’s Counterintelligence Division, and FBI Deputy General Counsel Trisha Anderson after his Sussmann meeting in 2016. Priestap wrote that Baker stated that Sussmann “said not doing this for any client.” Anderson wrote, in part, “No specific client.”

Sussmann also put his apparent lie down in writing in a text message to Baker the night before their meeting in September 2016, according to Durham.

“I have something time-sensitive (and sensitive) I need to discuss,” Sussmann wrote, adding, "I’m coming on my own — not on behalf of a client or company — want to help the Bureau.”

The defense team wants to point to handwritten notes during a March 2017 meeting by Associate Deputy Attorney General Tashina Gauhar that put “attorney” in quotation marks and said this person “brought to FBI on behalf of his client." Notes by acting Assistant Attorney General Mary McCord said, “Attorney brought to Jim Baker and d/n [did not] say who client was.”

Sussmann’s lawyer argued Tuesday “Mr. Baker’s memory is clear as mud.”

Marc Elias was the Clinton campaign's general counsel and hired the opposition research firm Fusion GPS, which hired British ex-spy Christopher Steele in 2016 to create his discredited dossier. Elias previously testified he was aware of Fusion's plans to have Steele brief reporters during the 2016 contest, met with Steele in 2016, and periodically briefed the campaign about the findings from Fusion and Steele. Elias coordinated closely with his Perkins Coie colleague Sussmann on anti-Trump research in 2016.

Durham said evidence at trial would show that beginning in late July 2016, Sussmann, Joffe, and “agents of the Clinton campaign” were “assembling and disseminating the [Alfa-Bank] allegations and other derogatory information about Trump and his associates to the media and the U.S. government.” The special counsel said this “joint venture” aimed to hurt Trump politically.

Durham said Sussmann told the CIA about the purported Russian bank connection in a February 2017 meeting in which Sussmann again allegedly misled about his client. The special counsel said Sussmann also claimed that data to which he had access “demonstrated that Trump and/or his associates were using supposedly rare, Russian-made wireless phones” called YotaPhones “in the vicinity of the White House and other locations.” Durham found "no support for these allegations.”


The special counsel said he has evidence Sussmann’s other client, Joffe, “exploited” domain name system internet traffic at Trump Tower, Trump’s Central Park West apartment building, and the Executive Office of the President.

Durham revealed the CIA “concluded in early 2017” the Alfa-Bank and YotaPhone information was not “technically plausible" and did not “withstand technical scrutiny."

The special counsel said Joffe had tasked researchers with mining internet data to establish “an inference” and “narrative” tying Trump to Russia. Durham said Joffe indicated he was doing this to please certain “VIPs” on the Clinton campaign.