Special counsel John Durham might not have intended to take his case against Democratic cybersecurity lawyer Michael Sussmann to trial, a former federal prosecutor surmised on Sunday.

Former U.S. Attorney for Utah Brett Tolman said the trial, which begins in Washington, D.C., on Monday, bodes ill for Sussmann and will act as a set piece for the larger criminal inquiry into the origins and conduct of the Russia investigation.

"He’s facing up to five years in federal prison, and when you decide to go to trial, you also lose all of the benefits that the federal code has to offer for someone that’s cooperating with the government," Tolman said on Fox News. "I’m not sure Durham expected that this would go to trial. I think his plan was to charge Sussmann, be able to use this case, and hopefully have him cooperate to give him the broader and bigger picture of the conspiracy that involved perhaps even Hillary Clinton and her campaign."


Sussmann is charged with lying to the FBI about whom he was representing when, in September 2016, he presented internet data that suggested a now-discredited link between former President Donald Trump and a Russian bank. In particular, Sussmann was indicted for allegedly concealing his clients — Clinton's 2016 presidential campaign and “Tech Executive-1,” known to be former Neustar executive Rodney Joffe — from FBI general counsel James Baker. Sussmann denies lying to the FBI and has pleaded not guilty.

Brett Tolman, the executive director of the conservative group Right on Crime, said he believes Durham is "playing a chess game" and is "trying to set the scene for future cases."

Durham has one other active prosecution: a case against a key source for British ex-spy Christopher Steele's anti-Trump dossier. Durham has obtained a single guilty plea, which came from former FBI lawyer Kevin Clinesmith, who admitted to altering an email about a Trump campaign aide under government surveillance.


"He’s been able to pierce the attorney-client privilege, and he’s been able to see documents and emails and things that I think are helping him put together that larger picture. But once the conviction occurs — and he does have enough evidence," Tolman said. "He has enough evidence to make this conviction, but assuming the conviction occurs, at that point, Sussmann will have a large incentive to help and cooperate in order to lower his sentence before the judge."

Asked if Durham has what he needs to go for more prosecutions moving forward, Tolman said, "I think he does have a lot of document evidence that I think can support it. But what he’s lacking are individuals coming forward that will resonate with the grand jury and with the jury when he tries a larger conspiracy case. And that’s what he needs. He needs individuals that were part of the conspiracy to cooperate."