Durham probe takes massive hit with Sussmann acquittal

John Durham’s special counsel investigation took a massive blow this week when its flagship prosecution against prominent Democratic attorney Michael Sussmann resulted in an acquittal. 

The verdict will likely do significant reputational damage to an already controversial investigation and raises the question of what’s next for the Trump-era prosecutor.

The two-week trial ended with a unanimous not guilty verdict from a federal jury that heard Durham’s office argue Sussmann was at the center of a 2016 scheme to manipulate the FBI into investigating then-presidential candidate Donald Trump.

It was a major setback for an investigation that began three years ago and has been accused of seeking to provide Trump with political ammunition.

During the Trump administration, former Attorney General William Barr tasked Durham with reviewing the origins of the FBI investigation into Trump’s 2016 campaign over allegations that it had been colluding with Russia.

Durham’s probe was launched as Trump was claiming he had been the target of a smear campaign orchestrated by his 2016 opponent Hillary Clinton and the FBI.

By the end of Trump’s term, the prosecutor had been designated as a special counsel, allowing his investigation to continue after President Biden took office, despite a 2019 Justice Department inspector general report that concluded the FBI was justified in launching the Trump investigation.

Durham has brought charges against three people, including Sussmann, but so far has provided little new information that would support Trump’s claims.

Some legal commentators had questioned the decision to pursue charges against Sussmann.

The special counsel’s office had alleged that the former partner at the Perkins Coie law firm had lied to the FBI’s general counsel when he arranged a meeting in October 2016 to hand over internet data purporting to show suspicious traffic between the Trump Organization and the Russia-based Alfa Bank.

Sussmann was accused of falsely claiming that he was not acting on behalf of any of his clients, which at the time included Clinton’s presidential campaign, when he presented the data. The FBI ultimately concluded that it could not establish any link between Trump and the Russian bank.

Some analysts believed the decision to charge Sussmann was questionable partly because there were no third-party witnesses to the meeting in question, which took place nearly six years ago, making it hard to prove the lie to a jury.

Veronica Renzi, a former federal prosecutor, says that the verdict should prompt some introspection from Durham’s office.

“I think that’s an indication to the Durham team that they should really give consideration to how it chose to charge this case,” Renzi said.

She added that the prosecutors should examine whether they are “looking at the evidence the same way that they think that the jury will look at the evidence and to really examine that in deciding if the matters that they’re bringing warrant prosecution.”

It’s unclear what impact, if any, the verdict will ultimately have on Durham’s investigation.

“While we are disappointed in the outcome, we respect the jury’s decision and thank them for their service,” the special counsel said on Tuesday in response to the outcome of the trial. “I also want to recognize and thank the investigators and the prosecution team for their dedicated efforts in seeking truth and justice in this case.”

Some of Trump’s critics see Durham’s cases as politically motivated and have begun calling on Attorney General Merrick Garland to put an end to the special counsel’s probe.

But Bruce Green, a Fordham University law professor and former federal prosecutor, says previous attorneys general since the Nixon administration have historically taken a hands-off approach to special counsel investigations and Garland would be inviting a political backlash if he were to depart from that norm.

“I just don’t think a Democratic appointee can say that very easily, and would probably take a lot of heat and I think it’s probably better for public confidence in the Justice Department for the attorney general just to let this play out,” Green said.

Durham’s office is scheduled to go back to court in October for a trial against Igor Danchenko, one of the sources of the controversial Steele dossier who is facing five counts of lying to the FBI in 2017 when investigators were looking into the document.

It’s unclear whether the special counsel will have more success in making his case against Danchenko, but the trial will likely provide him with an opportunity to put the spotlight on the FBI’s handling of its Trump investigation.

For his part, Trump has continued to litigate his claims stemming from the 2016 campaign and appears unlikely to be deterred by the outcome of the Sussmann trial.

Earlier this year, he filed a sprawling federal racketeering lawsuit against Clinton and various Democrats and former law enforcement officials, alleging a wide-ranging conspiracy to undermine him politically with a smear campaign seeking to link him to the Kremlin.

On Thursday, Trump’s lawyers will try to convince a federal judge to allow the case to proceed as the various defendants seek a dismissal.

After the Sussmann verdict was reported on Tuesday, Trump released a letter dated May 27 to the organization behind the Pulitzer Prize, pointing to developments in the Sussmann trial detailing the Clinton campaign opposition research efforts in 2016 and demanding they retract their 2018 awards to The New York Times and The Washington Post for reporting on Russian interference in the 2016 election.

“I again call on you to rescind the Prize you awarded based on blatantly fake, derogatory and defamatory news,” Trump wrote. “If you choose not to do so, we will see you in court.”