Mook’s testimony at Sussmann trial: A surprise for Hillary, or a smart defense strategy?

While cable news cherished the Johnny Depp/Amber Heard defamation trial this past week for its revenue-generating clickbait value, special prosecutor John Durham brought Hillary Clinton campaign lawyer Michael Sussmann before a jury to determine whether he lied to the FBI — a trial that has actual value for the nation. 

Durham believes Americans are owed the truth about what he contends was the Clinton campaign’s efforts to create or use false information about her opponent in order to deceive voters into choosing her in the 2016 presidential election.

Is making up false dossiers and a story about a Donald Trump “hotline” to the Kremlin against the law? Maybe not a lot of it. But Durham accuses the Clinton team of simply making up false stories in their lust for power — a fraud-in-effect against the American people that requires exposure and condemnation. Otherwise, we will see more of it as a campaign strategy in future elections.

Everyone knows that politics is a contact sport and “dirty tricks” and “October Surprises” are routine ploys. But most of these result from opposition research that uncovers information linked to some true fact, such as a DUI arrest, an extramarital affair, a youthful indiscretion, or a cringeworthy photo with some undesirable person.  

The Sussmann trial is helping to document a different approach by the Clinton campaign. According to Durham, they simply made up a stunning scale of false allegations and disinformation, unprecedented in presidential politics, in their attempt to sway the election and then, having failed, to undermine the new administration to which they lost. This has cost the country dearly.

The trial is moving rapidly, which is to be expected on a single charge of lying to the FBI (18 USC 1001). Durham’s prosecution team expertly introduced evidence refuting Sussmann’s claim that he was simply acting as a concerned citizen, and not on behalf of any client, when he passed on information to the FBI about supposed links between the Trump campaign and the Kremlin.

The prosecution was able to 1) establish that Sussmann made that claim in a text message to then-FBI general counsel James Baker; 2) secure Baker’s testimony to that fact in trial; 3) show that Baker immediately reported Sussmann’s claim to others in the FBI as reflected in notes of other FBI executives; and 4) show that Sussmann billed the hours of his interactions with the FBI to the Clinton campaign, his client.  

The motivation for Sussmann’s alleged lie is not an element of the crime, only his intent to deceive. Sussmann is charged with delivering a lie in order to conceal facts that might have kept the FBI from acting in a way that Sussmann and his client desired.

Lying to the FBI is, essentially, fraud against the government, since the FBI is being urged to commit taxpayer resources that it might not choose to if it knew the whole truth. It carries a potential five-year prison sentence, which is no joke for D.C. attorneys whose idea of discomfort is the Capital Grille running out of lobster tail.  

So why did Sussman, knowing the prosecution’s compelling evidence, take his chances with a jury trial? What follows is pure speculation but not without logic. 

First, he has access to some of the most expensive attorneys in the country who are highly skilled at persuading juries or, at least, sowing reasonable doubt. In addition, recent weeks have seen a flurry of pretrial motions indicating what the presiding judge may or may not allow in his court; not all of his decisions were favorable to the prosecution. Also, the jury of Sussmann’s peers has been drawn from the deep-blue District of Columbia. 

That said, our system largely works because judges, regardless of who appointed them, and juries generally attempt to adjudicate within the four corners of the law. But these intangibles may help explain why Sussmann decided to roll the dice. 

On Friday, Sussmann’s defense team began to telegraph their likely strategy. It does not appear to include a direct attack on the evidence of Sussmann’s lie as alleged by the prosecution; that evidence is formidable and compelling. Instead, they look ready to portray the Clinton campaign as hapless victims desperate to overcome damage they believe the FBI did to them.  

The defense called Clinton’s 2106 campaign manager, Robby Mook, who promptly, and surprisingly, testified that Hillary Clinton approved the strategy to take to the media the same false information about a Trump/Russia “hotline” that Sussmann wanted the FBI to investigate. 

Conservative media characterized the admission of Clinton’s direct involvement as a dagger to the defense’s case. But, hold on, not so fast: Mook also testified that the campaign believed the FBI significantly damaged its electoral chances when then-FBI director James Comey, on July 5, 2016, held his infamous ill-advised news conference and then prematurely alerted Congress that he was reopening a case against Clinton in late October 2016. Mook testified that the campaign believed Comey did more damage to their chances than Donald Trump.

Mook, frankly, has a point. Comey’s widely covered press-conference-trashing of Clinton, whom he was unwilling to indict, and his poor October decision to unnecessarily reopen her case just before the election were both unfair. Comey wasn’t just ineptly out of his swim lane; he was out of the pool.    

However, is Mook’s testimony germane to the elements of Sussmann’s alleged criminal lie? No, it’s not, but if the defense can depict Hillary Clinton as a sympathetic victim of FBI unfairness, driven to desperate measures to rebalance her campaign’s chances, then they only need to convince one Clinton-voting juror that Sussmann was simply trying to right a wrong.

The defense appears ready to put the FBI on trial as well, if it can. It was a strategy that worked to a degree in the recent unrelated trial of defendants accused of plotting to kidnap Michigan’s Gov. Gretchen Whitmer. There is anger and suspicion directed towards the FBI from both the right and the left, thanks to the residual destructive legacy of the Bureau’s Comey era.  

But Durham has his eye on exposing much larger truths than Sussmann’s untruths. Within that context, Mook’s testimony helps Durham’s overall goals. Win or lose at trial against Sussmann, Durham still will paint a disturbing picture of which Sussmann is but a small pixel. His trial, one way or another, is an important conduit to explain to the country how the 2016 Clinton campaign embarked on a strategy to fabricate information about her opponent in order to deceive American voters into voting for her, not for him. A strategy based on lies can never be justified.  

Kevin R. Brock is a former assistant director of intelligence for the FBI and principal deputy director of the National Counterterrorism Center (NCTC). He independently consults with private companies and public-safety agencies on strategic mission technologies.