Michael Sussmann’s defense team requested a mistrial be declared after the jury heard testimony from Sussmann’s former boss, Marc Elias, on Wednesday.
Elias, a former partner at the Democrat-linked law firm Perkins Coie, testified in a D.C. federal court in the trial over whether Sussmann lied to the FBI in 2016 when he fed the agency debunked evidence of a secret backchannel between the Trump Organization and Alfa-Bank. Elias hired Fusion GPS, which commissioned the Steele dossier, in 2016 to aid the Clinton campaign’s opposition research into the Trump team.
Sussmann is accused of hiding his then-clients, Hillary Clinton’s presidential campaign and tech executive Rodney Joffe, from FBI general counsel James Baker during a September 2016 meeting.
During his testimony, Elias told prosecutors to “ask Mr. Sussmann” if he had requested the meeting with Baker on behalf of a client. Sussmann’s legal team argued that Elias’ directive was prejudicial against Sussmann’s Fifth Amendment right not to testify, which Sussmann’s team is still weighing whether to invoke for the trial.
“Here, Mr. Elias expressly invited the jury to look to Mr. Sussmann for answers,” Sussmann’s lawyers said, according to the Washington Examiner. “This has caused obvious prejudice to Mr. Sussmann, who has not yet decided whether or not to testify in this case.”
Judge Christopher Cooper ruled out ending the case in a mistrial. Sussmann’s attorneys requested in lieu of a mistrial that Elias’ comments in question be stricken from the record. To that, Cooper said he would wait until after Sussmann made a decision to testify or not.
The defense attorneys also hit Durham’s prosecution team over part of its line of questioning toward Elias, which focused on how to determine if Sussmann spoke with Baker on behalf of a client or, as he claimed at the time, “on [his] own.”
“Mr. Elias’s nonresponsive testimony on cross-examination, as well as the repeated, improper questioning by the special counsel, directly suggested to the jury that in order to answer a key question in this case, whether Mr. Sussmann went to the FBI on Sept. 19, 2016, on behalf of a client, Mr. Sussmann would need to testify,” Sussmann’s defense team said. “But as the special counsel and Mr. Elias are well aware, a defendant in a criminal trial has a constitutional right not to testify.”
Sussmann’s trial is the first courtroom test of special counsel John Durham’s investigation into the origins of the Trump-Russia collusion conspiracy that hounded the former president for most of his presidency.
Elias’ testimony grew somewhat political as the discussion moved around Trump and Clinton. Elias described Trump as a “bully” and criticized the former president’s comments about Russia during the 2016 presidential campaign. On Clinton, Elias said that her treatment by the FBI was “unfair.”
The jury in the Sussmann case was drawn from a pool in deep-blue Washington, D.C. Many potential jurors, and some who were eventually picked to serve in the trial, expressed disdain toward Trump and support for Clinton. Cooper urged jurors to put their biases aside during the trial and focus on the evidence.