WHY THE SUSSMANN JURY MATTERS. What does the acquittal of Democratic lawyer Michael Sussmann say about the state of politically charged investigations in Washington? It says juries matter — whether a case goes to trial or not.
Sussmann is the Democratic lawyer who was charged by special counsel John Durham with lying to the FBI in 2016. Working on behalf of the Hillary Clinton campaign, the indictment said, Sussmann tried to plant a derogatory story about Donald Trump with the FBI and, in the process, falsely claimed that he was not acting on behalf of the Clinton campaign. On Tuesday, a jury in Washington, D.C., found him not guilty.
The jury has the right to decide, but there nevertheless seems no doubt that Sussmann lied to the FBI. He even did so in writing. When requesting a meeting with FBI General Counsel James Baker, Sussmann texted Baker, “Jim — it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. 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.” In fact, Sussmann was working for the Clinton campaign. He even billed them for the effort he made to tell the FBI. The part of the message that said “I’m coming on my own — not on behalf of a client or company” was simply not true.
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Even though the case seemed open and shut, Durham knew he was taking a risk in bringing it to trial in Washington, D.C. Why? Because the nation’s capital has perhaps the deepest-blue jury pool in the United States. In the 2016 election, Clinton won 90.9% of the vote in the district, with Trump receiving a scant 4.1%.
The Sussmann jury reflected that political bent. During the trial, George Washington University law professor Jonathan Turley noted that the jury “has three Clinton donors, an AOC donor, and a woman whose daughter is on the same sports team as Sussmann’s daughter.” Turley added: “With the exception of randomly selecting people out of DNC headquarters, you could not come up with a worse jury.” So it was not exactly a shock when the jury found Sussmann not guilty.
After the acquittal, most of the jurors decided not to talk to the media. That’s understandable. In these politically intense times, that might have led to harassment on social media or in real life. But the forewoman of the jury did speak to some reporters when court let out. And what she said was quite telling.
“Personally, I don’t think it should have been prosecuted,” the forewoman said of the case, “because I think we have better time or resources to use or spend to other things that affect the nation as a whole more than a possible lie to the FBI.”
What is striking about that is both the casual dismissal of “a possible lie to the FBI” and the fact that in recent high-profile investigations of Trump-associated figures, prosecutors viewed “a possible lie to the FBI” as a very serious matter. In fact, two of the most consequential cases launched by Trump-Russia special counsel Robert Mueller, those of Michael Flynn and George Papadopoulos, focused exclusively on the crime of lying to the FBI. Each man pleaded guilty to a single count of making false statements to the FBI, and Mueller’s sentencing memos in both cases stressed the gravity of the offense. Papadopoulos served 12 days in jail, while Flynn withdrew his plea and the case became bogged down in court battling. Both were pardoned by Trump.
Other Mueller targets were charged with lying to the FBI, in addition to other offenses. But in all cases, the special counsel saw lying to the FBI, all by itself, as worth prosecuting. Did he think that “we have better time or resources to use or spend to other things that affect the nation as a whole more than a possible lie to the FBI?” If he did, he still charged Flynn and Papadopoulos with lying to the FBI.
One of the things that strengthened Mueller’s hand, and weakened Flynn’s and Papadopoulos’s positions, was the knowledge that if their cases went to trial, they would be tried before a jury in deeply liberal Washington, D.C. The very prospect of having to go to trial before a jury in Washington increased pressure on Flynn and Papadopoulos to make a deal.
Here’s the thing. In both cases, Flynn and Papadopoulos, one could have made the argument that the charges were nitpicking or murky or that the government had not proved every minute detail of the charges or that pursuing the charges, even if they were based in fact, did not represent the best use of time or resources that could have been better spent on other things that affect the nation as a whole more than a possible lie to the FBI. Whether one accepted that argument or not about Flynn or Papadopoulos might well depend on one’s political views.
The forewoman of the Sussmann jury said that “politics were not a factor” in the verdict. She said that “the government had the job of proving beyond a reasonable doubt” that Sussmann was guilty and that “we broke it down … as a jury. It didn’t pan out in the government’s favor.” Afterward, Durham’s critics cheered and pronounced his investigation a failure.
But Durham’s investigation has in fact revealed a lot of important information to the public. He has done valuable work and will likely do more. But he can’t control how a jury thinks. The system just doesn’t work that way. It’s a good system, the best way we have to deliver justice. The jury’s decision is the final word. But the rest of us can still have our own opinions about why it turned out as it did.
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