Former FBI official takes stand in trial of former Democratic Party lawyer

Jurors at the trial of a former Democratic Party lawyer accused of lying to the FBI in 2016 while trying to gin up an investigation damaging to candidate Donald Trump heard for the first time, on Wednesday, from the former official on the receiving end of the alleged falsehood: former FBI General Counsel James Baker.

Baker took the witness stand on behalf of the prosecution in the late afternoon in U.S. District Court in Washington, but quickly made clear that he considered the defendant — former Perkins Coie partner Michael Sussmann — a friend and wasn’t testifying out of any desire to see Sussmann punished.

“I’m not out to get Michael and this is not my investigation. This is your investigation. If you ask me a question, I answer it,” Baker said under questioning by assistant special counsel Andrew DeFilippis.

Sussmann faces a single felony charge of making a false statement to Baker during a September 2016 meeting in which Sussmann relayed data and so-called white papers positing a potential connection between Trump-related computer servers and those of a Russian bank whose owners are associates of Russian President Vladimir Putin.

The indictment returned last year at the request of special counsel John Durham, who was appointed during the Trump administration to examine the origins of the FBI’s investigation into Trump’s Russia ties, doesn’t accuse Sussmann of presenting fraudulent information to the FBI. Instead, the criminal charge alleges that the veteran cybersecurity lawyer and former federal prosecutor deceived the FBI by claiming that in conveying the information about the suspect server links he was not acting on behalf of any client.

Sussmann’s lawyers have denied that he lied and have raised doubts about precisely what Sussmann said to Baker on that issue. But on Wednesday, jurors saw a text message Baker found on his personal cellphone that seems to support the government’s claim that he did assert he wasn’t acting for any client — such as the Democratic National Committee or Hillary Clinton’s campaign — when he brought the server data and reports to Baker.

“I have something time sensitive (and sensitive) I need to discuss,” Sussmann wrote to Baker on Sept. 18, 2016. “Do you have availability for a short meeting tomorrow. I’m coming on my own — not on behalf of a client or company — want to help the Bureau. Thanks.”

Baker said he discovered the text message around March of this year after a direct request from Durham to check for any communications with Sussmann. The message is something Durham’s team would certainly have wanted to know about before the indictment was sought last year, but Baker said no one asked.

“You asked me to look for something, I go look for it,” said Baker, now deputy general counsel at Twitter. “To the best of my recollection, nobody had asked me to go look for this material.”

Testimony concluded for the day before Baker related exactly what he recalled Sussmann saying at the meeting the pair held on the day after the text was sent. Baker has given differing versions of what Sussmann said about his clients, if anything, during the chat the men had at Baker’s office in FBI headquarters on Pennsylvania Avenue. Baker has no notes on the subject and there was no recording. There are indications Baker told others at the FBI that Sussmann wasn’t representing a client at the meeting, but there are also notes from others suggesting they knew or thought he was.

Baker took the stand after several hours of testimony from the top lawyer on Hillary Clinton’s 2016 presidential bid, Marc Elias, about his hiring of a private research firm to turn up damaging information about Trump as part of a broader effort to guard against possible libel suits against the campaign from Trump or others.

Elias is arguably the most prominent witness thus far at the politically charged trial. A widely known figure in the legal community for his work on behalf of Democrats in voting-rights and election litigation, Elias became a mini-celebrity during the 2020 cycle for his online updates about the seemingly endless legal battles that unfolded as Trump tried to contest his loss to Joe Biden. Last year, Elias left Perkins Coie and started his own law firm, Elias Law Group.

Elias seemed at ease during his testimony, although he repeatedly apologized to the court reporter for speaking too quickly and stepping on DeFilippis’ questions.

“I apologize. It’s my New York coming out,” the election-law specialist said.

The prosecution’s main goal in questioning Elias appeared to be to reinforce its contention that Sussmann’s outreach to the FBI was obviously part of a deliberate, broader effort by the Clinton campaign to spur media attention to the potential link between the Trump server and the Russian bank, Alfa-Bank. Sussmann’s defense has maintained that he was acting on his own behalf when he contacted the FBI and passed on data and documents supporting the notion of such a communications channel.

Under questioning by DeFilippis, Elias acknowledged that he retained the private investigation firm Fusion GPS to assist him in representation of the Clinton campaign and the Democratic National Committee. One “bucket” of Fusion’s work involved the ties Trump and his associates had to Russia, Elias said.

“As things went along, there was a bucket that related to the unusual connections that the Trump campaign, and people associated with it, seemed to have an affinity for Russia and Vladimir Putin,” Elias said.

He said that during most of the campaign season he held “weekly check-ins” with two principals of Fusion, Glenn Simpson and Peter Fritsch.

As the controversy and various investigations into Trump’s ties to Russia unfolded during his presidency, Fusion GPS became a flashpoint for attacks by Republicans, who slammed the firm for its role in creating a widely disputed dossier of claims about Russia and Trump, as well as various figures in his orbit.

Elias also confirmed that he first learned of what he called the “secret server” allegations from Sussmann, who was another partner at Perkins Coie and who focused primarily on cybersecurity issues. Jurors saw numerous emails and billing records Wednesday that appeared to show Sussmann involved with Elias and Clinton campaign matters around the time the claims about the server surfaced. However, precisely what was discussed remained murky because of certain attorney-client matters being off-limits at the trial.

DeFilippis pressed Elias on when he learned that Sussmann had had contact with the FBI about the so-called secret server allegations.

“I think it was shortly after. I think he was telling me that he had gone to the FBI,” Elias said. “It is possible it was right before. If I had a gun to my head, I’d say right after.”

During cross-examination by defense attorney Sean Berkowitz, Elias said flatly that he never authorized Sussmann to go to the FBI on behalf of the Clinton campaign and that he would not have favored taking the claims about the server to law enforcement at that point.

“I don’t believe that I would have thought that was a good thing,” Elias said, adding that the Clinton campaign hoped instead for a New York Times story drawing attention to the assertions, which the FBI later decided were unfounded.

While the prosecution has described Sussmann’s outreach to the FBI as part of an effort to generate an “October surprise,” Elias poked fun at that idea.

“First of all, an October surprise comes in October,” he quipped. He also said there wasn’t much time to get an FBI probe off the ground. “There wasn’t an endless runway of time for this news story,” Elias said.

Near the end of the day on Wednesday, Sussmann’s defense said it was considering moving for a mistrial after Elias answered some questions about Sussmann’s purpose in contacting the FBI by saying, “Ask him,” and, “You’d have to ask Mr. Sussmann.” Defense attorney Sean Berkowitz didn’t detail his objection, but it might be that the answers suggested Sussmann has some duty to explain his actions, potentially undermining his right not to testify.

DeFilippis noted that Elias’ first comment seeming to redirect questions to Sussmann was actually during cross-examination by the defense.

Judge Christopher Cooper signaled that he wasn’t likely to grant a mistrial and that he expected testimony to continue on Thursday.

Despite the defense’s complaints, much of Elias’ testimony seemed beneficial to Sussmann’s defense. Although Cooper has told jurors that neither Trump nor Clinton is on trial and the prosecution has urged jurors to put their political beliefs aside, Elias was sharply critical of Trump on several occasions on Wednesday.

Elias called Trump “a bully” for using litigation and threats of litigation to intimidate his opponents in both business and politics. Elias also reminded jurors that Trump’s response to the hacking and release of a massive trove of emails from Clinton campaign chair John Podesta was to praise WikiLeaks and solicit more disclosures.

“Rather than doing what any decent human being would and condemning it, Donald Trump said, I hope Russia is listening and we’ll find the 30,000 missing Hillary Clinton emails and release them,” Elias said. The former Clinton campaign lawyer said that the campaign felt “under attack” and that it was at least “plausible” to believe that Trump was coordinating with Russia.

If the jury’s verdict does wind up turning on politics rather than the narrow legal issues in the case, it will be tough for prosecutors to win a conviction, given the Democratic leanings of most D.C. residents.

Given the prosecution’s claim that Sussmann covered up aspects of the origin of the server allegations, the prosecution sought to use Elias to underscore the secrecy of the work Fusion did on ties between Trump and Russia. Elias said he considered the relationship confidential, but he also said that was par for the course in such work.

“I typically, when I hire any consulting firm, I want there to be confidentiality,” Elias said. “In my business, given who I tend to represent, I tend to not want more people to know about it than have to. … When you represent presidents, former presidents, vice presidents, Senate leaders, speakers, there is a general sense that it is better to keep things more limited because of leaks, because of things that can be done to disadvantage the candidate — the client.”

Sussmann stood by previous congressional testimony and arguments from lawyers for the Clinton campaign and the Democratic National Committee that Fusion’s work was privileged and amounted to litigation support because they were providing research that could be useful in vetting statements that had the potential to result in litigation from Trump or others. In February of this year, Trump filed a wide-ranging suit against Clinton and dozens of other individuals and entities alleging they engaged in racketeering by spreading false claims about his links to Russia.

In campaign finance reports, the Clinton campaign and DNC listed amounts paid to Fusion as payments to Perkins Coie for legal fees. That prompted an investigation by the Federal Election Commission into whether the committees improperly disguised opposition research expenses.

Earlier this year, the Clinton campaign and the DNC agreed to resolve those misreporting allegations by paying a total of $113,000 in fines. The Clinton campaign and the DNC maintained that the disclosures complied with federal law and regulations, arguing as Elias did Wednesday that the private investigation work was not ordinary opposition research but ancillary to legal services.

“A lot of it was just research I needed for my own purposes,” Elias said, while acknowledging he sometimes passed on the information to various departments of the Clinton campaign.