In 20 years as a prosecutor, it never ceased to amaze me how often a defense case at trial ends up helping the government far more than it helps the defense. Is that what happened today when, as Isaac Schorr reports, Michael Sussmann’s defense called Hillary Clinton’s 2016 campaign manager, Robby Mook?
Probably. That is to say, it looks like a harebrained move now.
Remember, prior to trial, the defense persuaded Judge Christopher Cooper to suppress tweets posted by Hillary Clinton on the eve of the election about the bogus claim that Donald Trump had a secret communications back channel to the Kremlin. This was a blow to special counsel John Durham, who has been trying to prove that Sussmann’s alleged false statement — claiming he was not representing a client, though he was actually representing the Clinton campaign, when he brought the FBI the now-discredited back-channel evidence — was part of a broader political dirty trick orchestrated by the campaign, and perhaps by Clinton herself.
Yet, putting Mook on the stand predictably opened the door to the introduction of the very Clinton tweet the defense had been trying to keep the jury from seeing. When Mook bracingly testified that Clinton herself approved the campaign proposal to leak the back-channel smear to the media, that enabled Durham to do exactly what he had hoped to do: place Sussmann’s alleged false statement in a larger context of a Clinton-driven conspiracy.
So why did Sussmann’s lawyers do it? I believe it was done in the service of the preposterous defense they are trying to sell the jury.
Sussmann would like to have been in a position to challenge the allegation that he represented the Clinton campaign at the relevant time. But he can’t. The evidence is overwhelming. He was billing his time to the Clinton campaign. He was strategizing with the campaign’s operatives on campaign initiatives. And the defense concedes that Sussmann was working on the campaign’s behalf when he tried to get the New York Times interested in the back-channel claim.
Consequently, since Sussmann can’t credibly deny that he was representing the Clinton campaign, he is trying to parse what the scope of that representation was. Under this theory, even if he is working for the campaign, and being paid by the campaign, he shouldn’t be seen as representing the campaign’s interests if he did things that the campaign supposedly opposed.
Consistent with this spin, Sussmann’s defense claims that the campaign did not want anyone to bring the FBI the back-channel information. Sussmann’s counsel theorizes that if the information were brought to the FBI, the bureau would then have leaned on the Times to delay publication of the Trump–Russia back-channel story to give agents time to investigate. That, we’re to believe, would disserve the campaign’s interests because the campaign wanted the Times to publish the story.
In this telling, Sussmann essentially betrayed the campaign, out of personal loyalty to the FBI and a personal, patriotic sense of duty developed in his years as a Justice Department national-security lawyer. Ergo, even though he may technically have been representing the campaign, Sussmann wasn’t really representing the campaign when he went to the bureau.
This is where Robby Mook comes in.
The defense called Mook to elicit his claim that there was no way that the campaign he was managing would agree to bring any evidence about Trump and Russia to the FBI. The Clinton campaign “did not trust” the FBI, Mook inveighed. Remember, the Clintonistas continue to claim that the bureau’s then-director, James Comey, hung Clinton out to dry with his damning public statements about her email scandal (though they conveniently omit that Comey also publicly decreed that she should not be indicted).
In putting Mook on the stand, the defense wanted an assertion from the highest official in the Clinton campaign that the campaign would not have approved Sussmann’s bringing the information to the FBI. Mook delivered, and further elaborated that Hillary Clinton herself approved the leak to the media. This supports the defense theme that the Clinton campaign wanted the Trump–Russia collusion narrative to be a media-driven story, not an FBI investigation.
Based on that, the defense hopes the jurors will say to themselves, “Gee, maybe Sussmann wasn’t representing the Clinton campaign after all.”
Again, it’s a ridiculous defense. Sussmann was representing the campaign, which has claimed attorney–client privilege in connection with documents Durham has sought for the trial, and which paid for Sussmann’s time for the visit to the FBI. Sussmann collaborated with the campaign in preparing to meet FBI general counsel James Baker. And quite obviously, as the campaign’s lawyer, Sussmann had a professional duty of fealty to his client; he would never have pursued a personal agenda to help the FBI if it were to the detriment of his client’s interests.
A lawyer either represents a client or he doesn’t. There is no Monday-morning quarterbacking, in which if something doesn’t go as planned, the client gets to say the lawyer wasn’t really representing him.
Moreover, the truth of the matter is that the Clinton campaign absolutely wanted to entice the FBI into investigating the Trump–Russia back-channel claim. That’s why you won’t hear a single campaign official assert, under oath, that he or she directed Sussmann not to go to the FBI.
It was not a matter of whether the campaign “trusted” the FBI; the campaign was trying to use the FBI. If the bureau could be persuaded to investigate, then the story would be more damaging to Trump, and more media outlets would spotlight it on the eve of the election. It would be the October surprise the Clinton campaign was banking on. That’s why, when Clinton posted her tweet, it referred to a statement by her then-adviser (and now Biden national-security adviser) Jake Sullivan, to wit: “We can only assume that federal authorities will now explore this direct connection between Trump and Russia.”
The defense that Sussmann was hoping Robby Mook would prop up is a frivolous defense. But it is the defense that Sussmann is running with, because it’s all he’s got. Calling Mook was not irrational. But on net, it was a mistake.