Durham’s Biggest Challenge: The Jury

I n a preview of the Michael Sussmann trial that the New York Post ran over the weekend, I summed things up with this:

[Special counsel John] Durham will have enough evidence to prove the narrow crime he’s charged. The biggest challenge may be the jury in Trump-hostile Washington. Durham may be the government’s lawyer, but this will not be a home game for him.

It is not a new theme. The defendant in the false-statements case is a prominent Democratic lawyer, the scheme in which the alleged crime took place was concocted by the Democratic establishment, and many of the witnesses on whom Durham must rely to prove the case — some of them old friends, colleagues, and political allies of the defendant — were putting their thumbs on the scale in 2016 for the Democratic candidate.

Washington is the government’s town and Durham is the government’s lawyer, but that does not make him an insider or a hometown favorite.

I can’t say, then, that I was surprised this morning while reading reporting by the Washington Examiner’s Jerry Dunleavy on jury selection:

Many of the members of the broader jury pool, as well as some selected for the jury itself, expressed strong disdain for former President Donald Trump and/or support for Clinton. Most said they hadn’t heard of the Sussmann case until the judge told them about it last week.

“I remembered that the 2016 election was kind of a mess and that there were a lot of shenanigans,” one of the selected jurors told the court. She said she “strongly” disliked Trump and that she didn’t think she could be impartial if the case was about someone on his team but noted that “if it’s not directly about Trump,” then she could be impartial.

Another selected juror, a man who works for the Treasury Department, said he had donated money to the Democratic side during the 2016 primaries but said he believed he could be fair. He was also aware that Robby Mook, one of the names listed on a jury questionnaire, had worked for the Clinton campaign. (Mook was the campaign manager.)

An additional juror, this one an attorney, said she had heard of Perkins Coie, the law firm that represented the Clinton campaign in 2016, but had no interactions with it and has heard of Sussmann and Durham but didn’t recall any details. She claimed she couldn’t recall if she had donated money in 2016 but said if she had, it would’ve been to Clinton. She did donate money in 2020. The juror said she “certainly had a strong preference for one candidate over the other” but that she believed she could be impartial.

Jury selection was completed in one day. Tuesday’s session began with opening statements (which our Isaac Schorr covers here), and the presentation of evidence is now underway. The trial will probably take two weeks.

The judge in the case is Christopher (“Casey”) Cooper, an Obama appointee with longstanding ties to Clinton World. His wife, moreover, is a former Justice Department lawyer who served as a top adviser to Obama attorney general (and Clinton deputy attorney general) Eric Holder; and in private practice she has most recently represented Lisa Page — the former FBI lawyer who figured so prominently in the FBI’s Clinton-emails and Trump/Russia investigations . . . and who worked closely with Jim Baker, the former FBI general counsel who is a central witness in the Sussmann trial. Page also worked closely and was romantically involved with former counterintelligence agent Peter Strzok, who was fired by the FBI after revelations of his anti-Trump animus discredited the bureau’s work. Strzok has become a vigorous public critic of Durham’s case against Sussmann; in fact, his analysis was relied on by Sussmann’s counsel in unsuccessfully arguing that the case should be dismissed.

We probably should not be stunned, then, to find that a conflict of interest has to vault a high bar before Judge Cooper perceives that it could be problematic. More from Jerry Dunleavy’s report:

Judge Christopher Cooper said the “case certainly has political overtones” and that “we’re not here to relitigate the 2016 election.” Cooper repeatedly told jurors, “Donald Trump is not on trial. Hillary Clinton is not on trial.”

That’s awfully facile. This is not a situation in which, if you filtered Trump and Clinton out of the trial, there would be no more concerns about jury bias. The case is about Democrats against Republicans: a Democratic Party–driven scheme to portray the Republican presidential campaign as a Russian spy operation. That scheme was so successful that many people believe it to this day, long after investigations have found there was nothing to it. Many Democrats still believe it. Which means many people in Washington still believe it. And yes, we are talking about the District of Columbia that gave its three electoral votes to Democrats George McGovern in 1972 and Walter Mondale in 1984, when Republicans Richard Nixon and then Ronald Reagan won their historic landslides.

Plus, Clinton and Trump can’t conceivably be filtered out of the Sussmann trial. Sussmann was working for Clinton’s campaign and allegedly lied to cover that up, precisely in an effort — a successful effort — to entice the FBI to investigate Trump as a clandestine agent of the Kremlin. A judge’s mumbling something about Trump and Clinton not being on trial cannot conceal the neon-flashing fact that Trump and Clinton are central to the facts of the case — without them, there would be nothing to have a trial about.

The evidence that Sussmann lied appears strong. While less strong, the evidence that the lie was material — that it made a difference, which is an essential element the prosecution must prove — is probably sufficient to support a conviction. (I’ll address that in later posts as the trial proceeds.) All that said, though, it is going to be hard for Durham’s prosecutors to convince twelve Washingtonians unanimously to convict a Democratic lawyer who will say he was trying to save America from Donald Trump. That was true even before the Capitol riot.

I’ll leave you with this thought. Durham has one other pending false-statements indictment, against Igor Danchenko, the main source for the infamous Steele dossier. The special counsel could have charged that case in Washington, too. After all, most of the relevant action happened in the nation’s capital. But the FBI interviewed Danchenko in Virginia. That gave Durham a basis to charge the case in federal court in the Eastern District of Virginia.

That’s exactly what he did, and you can bet he didn’t need much persuading. Eastern Virginia, the home of many federal government officials and employees, is not exactly Trump-friendly. But it ain’t Washington.