WASHINGTON—The former Hillary Clinton campaign lawyer who is on trial for allegedly lying to the FBI is moving for a mistrial.

Attorneys for Michael Sussmann, the lawyer, say testimony delivered on May 18 by Marc 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, Elias was asked about the topic three times. Two defense objections were sustained and after the third time, U.S. District Judge Christopher Cooper, the Obama appointee overseeing the case, directed prosecutors with Special Counsel John Durham’s team 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.”

If the court declines, the defense is moving for a mistrial.

The motion has not yet received a ruling—proceedings resume at approximately 9 a.m. on Thursday—but when the matter was raised in court on Wednesday, Cooper said, “I am not inclined to rule a mistrial.”

Andrew DeFilippis, part of Durham’s team, 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.”

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.


John Haughey has been a working journalist since 1978 with an extensive background in local government, state legislatures, and growth and development. A graduate of the University of Wyoming, he is a Navy veteran who fought fires at sea during three deployments aboard USS Constellation. He’s been a reporter for daily newspapers in California, Washington, Wyoming, New York, and Florida; a staff writer for Manhattan-based business trade publications.

Zachary Stieber


Zachary Stieber covers U.S. and world news. He is based in Maryland.

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