Durham prosecution faces hurdles in DC court

It took less than five hours for the jury to acquit Craig after a two-and-a-half-week trial, with some jurors saying they suspected politics were at work in the decision to go after the Democratic lawyer for long time.

Sussmann’s case could produce similar sentiments. Prosecutors argue that Perkins Coie’s former partner – who left the cabinet on Thursday – was working for the Hillary Clinton campaign and the Democratic National Committee at the time of a September 2016 meeting with the FBI’s top lawyer. According to the indictment, Sussmann lied to the office when he said he was not speaking to them on behalf of any clients.

The similarities go further, with both cases bringing up murky memories of an in-person meeting that was not recorded or transcribed, as well as questions about whether the defendants were acting on their own or on behalf of the accused. ‘other people who were running several times. million dollar legal bills.

The stakes in Sussmann’s case extend far beyond his own fortune: a conviction could back former President Donald Trump’s claims that the Russian investigation was illegitimate and politically motivated. Conversely, an acquittal would suggest that Durham’s investigation revealed little wrongdoing.

In a brief appearance in federal court in Washington on Friday, Sussmann pleaded not guilty through one of his attorneys and was released on $ 100,000 bail.

Sussmann’s attorneys declined to comment on parallels to Craig’s case or Friday’s proceedings. However, they argued in a statement Thursday that politics had infected the decision to indict Sussmann.

“Michael Sussmann was charged today because of politics, not facts,” defense attorneys Sean Berkowitz and Michael Bosworth said. “This case is the opposite of everything the Department of Justice is supposed to stand for. Mr. Sussmann will fight this baseless and politically inspired pursuit.

Sussmann’s attorneys did not expand on their politically motivated claims, but did suggest that Durham – a career prosecutor who was granted special advocate status last year by Attorney General Bill Barr – was complying with the Trump’s public demands that Durham’s probe into Trump’s origins -Russian investigation shows tangible results beyond guilty plea obtained last year by low-level FBI lawyer who admitted to tampering an email.

Despite the appointment of Durham’s special advocate, Attorney General Merrick Garland could have stopped Sussmann’s indictment. But that would have sparked a report to Congress and an inevitable political storm.

Former U.S. Attorney Joyce White Vance said she suspected Garland had decided to rely on career prosecutors to decide whether or not to file the case.

“There were definitely actions that weighed in favor of allowing a career person to make billing decisions,” said Vance.

Vance also said she believed prosecutors might have a hard time getting a guilty verdict against Sussmann “unless the evidence in this case is much better than what has been reported.”

Vance called the charge “very difficult to understand, especially compared to other cases involving false statements in court or in Congress that the Department of Justice has passed on to prosecution.”

The Sussmann case revolves around an exchange with James Baker, the FBI general counsel at the time, at office headquarters. Baker took no notes, although an FBI colleague who did not attend the session wrote that Baker said Sussmann said he was not appearing on behalf of any client when relaying the information. on possible IT links between Trump and a Russian bank.

Craig’s accusation was largely based on his statements during a meeting with staff members of the Department of Justice’s Foreign Agent Registration Act unit in October 2013. The problem was work. by Craig on a report for the Ukrainian Ministry of Justice on the country’s handling of the trial of a former prime minister, Yulia Tymoshenko.

As more people attended the meeting, including two of Craig’s colleagues at law firm Skadden Arps, memories of what was said varied. One of Craig’s colleagues took notes, but no notes taken by government officials were ever found.

Some longtime legal analysts have said prosecutors may misjudge the strength of cases involving allegations of misrepresentation to government investigators.

“You can get angry if you think someone is lying to you, even if the evidence is weak,” said Stuart Taylor, former New York Times reporter, lawyer and friend of Craig.

Craig’s billing became something of an alibi during his trial. Prosecutors said it was obvious Craig Craig’s huge business was paid – largely by a Ukrainian oligarch – for the report, which motivated his work. The public relations effort included his willingness to preview the report for prominent New York Times reporter David Sanger and discussions with other reporters.

However, Craig argued at trial that he was protecting his own interests and those of his business – not his client – by reaching out to Sanger and others. To substantiate his claim, Craig said he did not charge Ukraine for time spent talking to Sanger or other reporters.

“Did you bill the Justice Department for the time you spent talking to reporters?” Asked defense lawyer William Taylor.

“No,” Craig said. “I was not working for Ukraine at the time.”

Sussmann’s case could spark a similar dispute. The grand jury indictment prepared by prosecutors in Durham argues that Sussmann billed the Clinton campaign for his discussion with Baker of the FBI, but Sussmann’s attorneys disputed this.

A more fundamental question surrounding the two cases is whether jurors will take a misrepresentation charge seriously in the absence of another accused crime.

During opening statements in the Craig case, Taylor drew a reprimand from the judge for seeking to play down the misrepresentation charge by telling jurors it “was not a case of theft, assault. or even corruption “.

Sussmann’s lawyers are already disputing Durham’s claims about the case, including the indictment’s suggestion that Sussmann intentionally relayed inaccurate or unreliable information in order to build an anti-Trump “narrative”.

“The special advocate appears to be using this indictment to advance a conspiracy theory that he has chosen not to actually charge,” Berkowitz and Bosworth wrote. “Stripped of its political bluster, innuendo and irrelevant detail, what is striking about the indictment allegations is the few that actually relate to the indictment that the special council chose to wear.

While the similarities are striking, there are some differences between the cases.

Although Craig was charged under the same misrepresentation law, he was technically not charged with making a false statement. Instead, prosecutors accused him of violating a part of the law that prohibits schemes to deceive the government.

Craig also carried with him a reputation and a history that few Washington lawyers would be able to muster. At his trial, his lawyers bragged about their 74-year-old client’s half-century of work, including stints at registering African-American voters in the South during the civil rights movement. The judge allowed Craig to call four character witnesses, including a retired judge from Georgia who worked on anti-war efforts with Craig in the 1960s.

Sussmann, 57, has a solid reputation as a former federal prosecutor and cybersecurity expert, but he is unlikely to receive the support Craig had during his trial.

However, Sussmann has some advantages that Craig did not have. A DC jury is unlikely to view Sussmann’s clients – the Democratic National Committee, the Hillary Clinton campaign, and a tech expert – as nefarious forces. Craig’s lucrative work for Ukraine, by contrast, was seen as reckless by some of his allies in human rights circles. and aligned him with figures like GOP lobbyist Paul Manafort.

Some lawyers watching the Sussmann saga have also compared it to the Justice Department’s lawsuits against former Sen. John Edwards for expenses of nearly $ 1 million that his supporters paid for a campaign videographer who is became pregnant with Edwards’ child following an extramarital affair.

This case was defended by a US Republican lawyer, George Holding, who brought charges against Edwards at the start of the Obama administration. Although many legal experts and former prosecutors viewed the case as flawed, dismissing the charges would have led to a political spectacle, much like the one that would have erupted if Garland had dismissed Durham’s proposed indictment against Sussmann. .

The Obama appointees ultimately approved the case against Edwards, but in a 2012 trial, a North Carolina jury was deadlocked on most of the charges. The Justice Department quickly decided not to proceed with a new trial.

Holding resigned shortly after Edwards’ indictment. Capitalizing on publicity, the former prosecutor ran for Congress and won the House election. He served four terms, but declined to stand for re-election last year.

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