By John Haughey and Zachary Stieber
WASHINGTON—A federal judge on May 19 denied a request for a mistrial from the former Hillary Clinton campaign lawyer who is on trial for allegedly lying to the FBI.
U.S. District Judge Christopher Cooper, the Obama appointee overseeing the case, agreed to strike certain portions of testimony delivered Wednesday by Marc Elias but rejected the request for a mistrial.
Attorneys for Michael Sussmann, the lawyer who allegedly lied to the FBI, said Elias—another former Clinton campaign lawyer—strayed into improper areas, prejudicing the defendant.
When Elias was asked by the defense whether Sussmann took information on Clinton rival Donald Trump to the FBI on Sept. 19, 2016, on behalf of Clinton’s campaign, Elias said “from my standpoint, I would say no,” but also told the defense to ask Sussmann.
“Portions of Mr. Elias’s answer—namely that ‘you’d have to ask Mr. Sussmann’ and ‘on behalf of’ is kind of like a subjective intent thing’—were nonresponsive and prejudicial. Although Mr. Sussmann was prejudiced even then, the defense declined to draw attention to the comment in the presence of the jury,” defense lawyers wrote in a motion filed later Wednesday.
Under cross-examination by prosecutors with Special Counsel John Durham’s team, Elias was asked about the topic three times. Two defense objections were sustained and after the third time, Cooper directed prosecutors to move on to other questions.
But the damage was already done, according to the defense.
“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 September 19, 2016, on behalf of a client—Mr. Sussmann would need to testify,” defense lawyers 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. And commenting, either directly or indirectly, on a defendant’s decision to testify or not testify is entirely improper.”
Lawyers for Sussmann are asking for the court to strike the portions of Elias’s testimony dealing with the matter as well as the three questions prosecutors asked. They also want permission to give a transcript to the jury during closing arguments that shows the testimony “without the improper questions and answers.”
Andrew DeFilippis, part of Durham’s team, had said that the government “was very careful” to avoid questions that would elicit an improper response, adding, “It wasn’t the government that prompted that response.”
After Cooper agreed to strike portions of the testimony, Sean Berkowitz, one of Sussmann’s lawyers, said Sussmann has not yet decided whether he will testify during the trial.
Sussmann is accused of lying when he told James Baker, who in 2016 was the FBI’s general counsel, that he was not bringing derogatory information about Trump to the bureau on behalf of any clients. Prosecutors say Sussmann brought the allegations on behalf of Rodney Joffe, a technology executive who hoped to score a position in a Clinton administration, and the Clinton campaign.