Sussmann Makes the Right Call in Opting Not to Testify

D on’t I have all the luck! This my column on why it would be a mistake for Michael Sussmann to testify in his own defense. Or at least it was going to be until it was announced, as we were about to go to press, that he had changed his mind and decided not to testify.

If you’ve been following our Isaac Schorr’s top-notch courtroom coverage, you know that the prosecution rested its case against Sussmann on Wednesday, in his trial for allegedly lying to the FBI. After a very brief defense case, both sides have now rested, and the trial will soon proceed to closing arguments.

Sussmann clearly made the right decision in staying off the witness stand.

It is true that juries in criminal trials generally want to hear the accused testify. That is why many defendants do so, including many whose better move would be to rest on their constitutional right not to testify.

That right is complemented by the court’s standard instructions that the jury must not draw a negative inference from a defendant’s decision not to take the witness stand, and that the government bears the burden to prove the case beyond a reasonable doubt regardless of whether the defense presents evidence. It’s a big advantage.

Naturally, jurors want a defendant to look them in the eye and tell them he did not commit the crime charged. But that does not mean jurors hold it against a defendant who declines to testify. In my experience, juries try hard to follow the court’s instructions.

In this old trial lawyer’s eyes, a defendant who testifies — and, more broadly, a defense that decides to present anything more than a nominal case — forfeits the defendant’s biggest advantage in a trial: the fact that only the prosecution needs to prove anything.

In a vacuum, the government’s case is often unattractive, even if it may be technically sufficient. The warts stand out. But once a defendant testifies, there is no longer a vacuum. It becomes the prosecutor’s story versus the defendant’s story. While it’s true that the jury will still be told that the government bears the full burden of proof, it becomes hard for a jury not to look at the case as a matter of which side’s story makes more sense. And the warts in the government’s case often don’t look nearly so bad when they are compared with what the defense presents.

Ironically, those who insist that a defendant must testify because the jury expects it never seem to consider that, if the defendant does testify, the advantage of having no burden of proof effectively dissolves.

At the end of the prosecution’s case, Sussmann found himself in better shape than he had any business expecting.

This should be a slam-dunk case for the government. Sussmann made a false statement: He claimed not to be representing anyone, when he was in fact representing the Clinton campaign, in bringing what essentially was bogus, anti-Trump opposition research to the FBI and urging the bureau to investigate.

In addition to falsity, the prosecution must prove materiality. In the abstract, Sussmann’s false statement was obviously material: He concealed his Clinton-campaign connection (and his other client, Rodney Joffe, the tech executive Clinton devotee who compiled the anti-Trump data) because if he had revealed it, the FBI would have known he was peddling partisan propaganda and would have been far less likely to investigate.

Should be an open-and-shut case for a guilty verdict.

Here, however, there is abundant evidence that the FBI was not duped, as the prosecution insists. Headquarters officials were well aware that Sussmann was a Democratic political operative with a partisan motive to derail Donald Trump’s presidential bid, and they shared that objective — having already started down the road of seeking surveillance warrants from the FISA court on the theory that Trump could be a clandestine agent of Russsia.

Not only was the FBI, at its top level, not duped; headquarters misled the agents tasked with assessing Sussmann’s information. Headquarters concealed Sussmann’s identity as the source in order to hide what investigators would instantly have seen as the political nature of the tip. So misleading was this effort that the document by which the FBI opened the investigation falsely claimed that the information came not from Sussmann but from — of all places — the Justice Department.

That is, Sussmann’s counsel is already positioned to make a strong argument that the FBI was misled not by Sussmann but by its own bosses in Washington. Moreover, Sussmann’s lawyers are poised to contend that his false statement was not material: Even when line agents determined that Sussmann’s information was deeply flawed and did not show ties between Trump and Russia, headquarters would not permit agents to shut the investigation down; they just recast it as a counterintelligence probe and kept pushing.

In other words, Sussmann can argue that the FBI was hell-bent on pursuing Trump as a Russian asset no matter what he said or did.

That is a very strong position for a defendant to be in considering that this is a false-statement case where the proof of falsity is strong. Combine that with the fact that you have a jury from virulently anti-Trump Washington, D.C. — a jury from which the Obama-appointed judge has refused to exclude jurors who are unabashedly pro-Clinton and anti-Trump — and Sussmann has a very good chance of being acquitted.

Had Sussmann taken the stand, and had prosecutors done an effective cross-examination, showing him to be a hyper-partisan prevaricator, he would have forfeited most, if not all, of his good fortune.

Michael Sussmann is a crafty fellow. Perhaps he would have been a convincing witness. But he could also have blown up on the stand and gotten himself convicted. It was prudent of the defense not to take that risk.