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Hillary Clinton lawyer Michael Sussmann moves for mistrial in John Durham case

Hillary Clinton campaign lawyer Michael Sussmann should be granted a mistrial because of witness testimony that revealed he may take the Fifth in his trial for allegedly lying to the FBI, his lawyers argued Wednesday night. 

In a motion to strike – “or alternatively for a mistrial” – Sussmann’s attorneys said testimony under cross-examination by Marc Elias, the Clinton campaign’s former general counsel, was “nonresponsive and prejudicial.” 

When asked by Sussmann attorney Sean Berkowitz if the embattled lawyer passed information to the FBI on behalf of the Clinton campaign, Elias responded, “you’d have to ask Mr. Sussmann.”

After Berkowitz ended his questioning, prosecutor Andrew DeFilippis pressed Elias on the response in a series of queries to which Sussmann’s defense objected.

In their motion, Sussmann’s attorneys argued that DeFilippis’ questions were “improper” and “directly suggested to the jury that in order to answer a key question in this case … Mr. Sussmann would need to testify.” 

“Commenting, either directly or indirectly, on a defendant’s decision to testify or not testify is entirely improper,” they argued. 

Special Counsel John Durham is prosecuting Michael Sussmann on charges that Sussmann lied to FBI while providing information about later discredited allegations of communications between the 2016 presidential campaign of former U.S. President Donald Trump and Russia.
REUTERS/Julia Nikhinson
Former U.S. Secretary of State Hillary Rodham Clinton waves before receiving an Honorary Doctor of Laws Degree during the Columbia University commencement ceremony in Manhattan, New York City, U.S., May 18, 2022.
Michael Sussman was Hillary Clinton’s campaign lawyer.
REUTERS/Andrew Kelly

In the motion, the defense requested Judge Christopher Cooper strike both Elias’s answers and the prosecution’s questions from the record – or grant a mistrial. 

Cooper is expected to rule on the motion Thursday morning, but said Wednesday that he was “not inclined” to grant a mistrial and told the attorneys to be prepared to question witnesses. 

Who’s who in the case

  • Michael Sussmann: Cybersecurity lawyer who worked for Hillary Clinton’s 2016 campaign; charged with lying to the FBI
  • Rodney Joffee: Former tech executive and Sussmann client who told him about a purported cyber back channel between the Trump Organization and Russia’s Alfa-Bank
  • Christopher Steele: British ex-spy hired by Fusion GPS; compiled the infamous “Steele dossier” of reports on Trump and Russia
  • John Durham: Special counsel investigating potential criminality in the government investigations of former President Donald Trump’s purported ties to Russia
  • James A. Baker: Former FBI general counsel; received Alfa-Bank information from Sussmann
  • Marc Elias: Clinton campaign general counsel, former partner of Sussmann’s at Perkins Coie law firm
  • Judge Christopher Cooper: Presiding over Sussman’s trial in Washington, DC, federal court
  • Peter Fritsch and Glenn Simpson: Former Wall Street Journal reporters who co-founded the Fusion GPS research company; worked for Clinton’s campaign
  • Andrew McCabe: Former FBI deputy director; allegedly contradicted the basis for the charge against Sussmann during a 2017 briefing

Sussmann is accused of lying to the FBI in 2016 by telling the bureau’s general counsel, James Baker, that he was not acting on behalf of any client when he passed along since-debunked information about a purported secret link between the Trump organization and a Russian bank. 

Special Counsel John Durham, who secured the indictment against Sussmann, alleges the attorney was actually acting on behalf of the Clinton campaign and an Internet executive, Rodney Joffe.

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