Jury selection for the high-profile criminal trial against Democratic cybersecurity lawyer Michael Sussmann took place Monday, with a rare public appearance by special counsel John Durham, who brought the case in his long-running investigation's first trial.
Sussmann was charged last year with concealing his clients — Hillary Clinton's 2016 presidential campaign and “Tech Executive-1,” known to be former Neustar executive Rodney Joffe — from FBI general counsel James Baker when he presented debunked allegations suggesting a secret back channel between the Trump Organization and Russia’s Alfa-Bank during a September 2016 meeting.
Durham spent much of Monday sitting just behind the full prosecution table close to the gallery half-filled with press and other audience members who had shown up to the Washington, D.C., federal courthouse. He was wearing a mask, which largely concealed his trademark mustache and goatee. Robert Mueller did not make a similar appearance in court when he was special counsel.
The “voir dire” process — in which dozens of potential jurors were questioned by the judge, the prosecution, and the defense — lasted almost the full day, and a full jury was finalized Monday evening. The jury consists of 12 jurors and four alternates, though it is not clear which are which. The full jury panel contains 11 women and five men.
Many of the members of the broader jury pool, as well as some selected for the jury itself, expressed strong disdain for former President Donald Trump and/or support for Clinton. Most said they hadn't heard of the Sussmann case until the judge told them about it last week.
FUSION GPS MUST HAND OVER DOCS TO DURHAM BUT HE CAN'T USE THEM AT TRIAL
“I remembered that the 2016 election was kind of a mess and that there were a lot of shenanigans,” one of the selected jurors told the court. She said she “strongly” disliked Trump and that she didn’t think she could be impartial if the case was about someone on his team but noted that "if it’s not directly about Trump,” then she could be impartial.
Another selected juror, a man who works for the Treasury Department, said he had donated money to the Democratic side during the 2016 primaries but said he believed he could be fair. He was also aware that Robby Mook, one of the names listed on a jury questionnaire, had worked for the Clinton campaign. (Mook was the campaign manager.)
An additional juror, this one an attorney, said she had heard of Perkins Coie, the law firm that represented the Clinton campaign in 2016, but had no interactions with it and has heard of Sussmann and Durham but didn’t recall any details. She claimed she couldn’t recall if she had donated money in 2016 but said if she had, it would’ve been to Clinton. She did donate money in 2020. The juror said she “certainly had a strong preference for one candidate over the other” but that she believed she could be impartial.
Judge Christopher Cooper said the "case certainly has political overtones” and that “we’re not here to relitigate the 2016 election.” Cooper repeatedly told jurors, “Donald Trump is not on trial. Hillary Clinton is not on trial.”
The case will be a big test for Durham. The nation’s capital, and thus many of its jury pools, is overwhelmingly Democratic. Clinton received 90.9% of the vote, while Trump received 4.1% in 2016. In 2020, President Joe Biden got 92.1%, while Trump received 5.4%.
The Department of Justice had trouble convicting another Democratic lawyer in Washington fairly recently in a spin-off case from Mueller’s investigation, which had charged Obama White House counsel Greg Craig with misleading the DOJ about his work in Ukraine. He was found not guilty in 2019.
Also among the Sussmann jurors are a former gymnast who is unemployed but a teacher by training, a medical illustrator, a mechanic, an employee of the Council on Foreign Relations, a worker for the Peace Corps, and a government contractor, among others.
The judge told the potential jurors who weren’t selected that “picking a jury is more of an art than a science.” After those who were not selected were dismissed, the jury was sworn in, instructed not to do independent research about the case and not to discuss the case with other jury members until all the evidence is in, and to return by 9 a.m. Tuesday.
The prosecution’s case will begin Tuesday with the government’s opening statements, followed by the start of witness testimony. Among the witnesses Durham’s team said it would likely call are Clinton campaign general counsel Marc Elias and FBI agent David Martin of the bureau's cyber unit.
Durham has said that if the defense attempts to obtain trial testimony about the accuracy of the Alfa-Bank data Sussmann pushed to the FBI, then Martin would explain that the underlying data did not support those collusion claims.
The judge has limited Durham’s ability to present testimony debunking the collusion claims.
Mueller, the FBI, the CIA, and a bipartisan Senate Intelligence Committee investigation cast doubt on or rejected the Alfa-Bank claims touted by the Clinton campaign in the closing days of the 2016 election.
Elias, who last year started his own law firm, the Elias Law Group, hired the opposition research firm Fusion GPS, which hired British ex-spy Christopher Steele in 2016. Elias testified he was aware of Fusion's plans to have the discredited dossier author, 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 former Perkins Coie colleague Sussmann on anti-Trump research in 2016.
Durham has said members of the Clinton campaign, Fusion, and Perkins played a coordinated role in pushing collusion claims.
Another expected prosecution witness tested positive for COVID-19, so his testimony was pushed back.
The judge also said that he would issue guidance about two remaining matters, on Steele as well as the scope of expert testimony, in the morning.
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Steele testified in a British court that Sussmann provided him with claims about Alfa-Bank’s purported ties to Russian President Vladimir Putin during a July 2016 meeting. These allegations made their way into a September 2016 memo that became part of the dossier.
The special counsel says the dossier author is at the “intersection” of Trump-Russia collusion efforts, while the Democratic lawyer calls evidence about him an unfair “lightning rod.”
The former MI6 agent is not expected to testify, and it remains to be seen what role he will play in the trial.