Former British intelligence agent Christopher Steele, the purported author of the infamous "Steele dossier," won't be called as a witness when former Clinton campaign attorney Michael Sussmann goes on trial next month for allegedly lying to the FBI.
On April 27, U.S. District Court Judge Christopher Cooper sorted through five motions regarding what can be entered as evidence, including four filed by Sussmann’s attorneys.
The discussion was the second evidentiary hearing in the case, with a third scheduled for May 4. There's also a likelihood that a closed hearing will take place to review potential evidence to be vetted under the Classified Information Procedures Act.
Sussmann’s trial is set to begin on May 16 in Washington. He's charged with one count of making a false statement to the FBI.
Federal prosecutors, led by special counsel John Durham, maintain that in August 2016, Sussmann and Clinton campaign lead counsel Marc Elias met with Neustar executive Rodney Joffe—whose company was contracted to monitor DNS traffic for the Executive Office of the President—and “encouraged” him to concoct a “narrative” tying The Trump Organization to Alfa-Bank, the largest private bank in Russia.
On Sept. 19, 2016, prosecutors say that Sussmann gave FBI general counsel James Baker documents collected to promote that debunked “narrative,” claiming that he was doing so as “a concerned citizen” and not representing a client.
Prosecutors say Sussmann failed to inform Baker that he had represented Joffe in the past, had recently represented the Democratic National Committee (DNC), and that his and Elias’s Perkins Coie law firm was general counsel for Hilary Clinton’s 2016 campaign.
The August gathering that led to Sussmann’s September meeting with Baker was, itself, preceded by a July meeting between Sussmann and Steele, a former British MI6 agent and author of the discredited Steele dossier. Steele's work was ultimately funded by the Clinton campaign.
Prosecutors maintain that Sussmann began investigating Alfa-Bank and Trump immediately after that seminal meeting with Steele. They say the sequence of meetings and subsequent events indicate that Sussmann, Elias, Joffe, Fusion GPS, Clinton’s campaign, and the DNC engaged in a “joint venture” to spread spurious claims that would dog the early days of the Trump administration.
Sussmann attorney Sean Berkowitz said calling Steele as a witness would be “unduly prejudicial" for his client with a jury.
“Invoking even his name is a lightning rod in this case because he is somebody who is probably one of the best known—there was, I think, a two- or three-year investigation into him, into the Steele dossier—which has nothing to do” with the charge against Sussmann, according to Berkowitz.
“So even the implication of Mr. Steele's name in this case we think would be unduly prejudicial given the lack of probative evidence,” he said. “The reality is that [Steele] is out of the country and isn't likely to be a witness. Without him as a witness, Judge, we don't believe there's any evidence about Mr. Steele that would be admissible to come in.”
U.S. Attorney Andrew DeFilippis said the prosecution has Steele listed as a witness, but doesn’t “expect to call him because he's not cooperating with us.”
Nevertheless, he said, even without Steele, and even with "limited" testimony allowed, there's ample evidence documenting a "strong intersection" between Fusion GPS’s “opposition research” and Sussmann’s "Alfa-Bank efforts,” he said.
“The meeting with Christopher Steele is incredibly probative and relevant” to proving Sussmann made a false statement to the FBI, “because it shows that Mr. Sussmann himself was integrated into that whole effort” to discredit candidate Trump and then President Trump, DeFilippis said.
Prosecutors “can limit the prejudice on this because we're not going to go anywhere near the more well-known or salacious parts of that dossier or anything like that. We're just trying to establish the extent to which Mr. Steele's work intersected with the Alfa-Bank matter,” he said.
Instead of calling Steele, prosecutors say they can get testimony regarding the July meeting from Fusion GPS employee Laura Seago, who's on their witness list.
DeFilippis said the government can also prove their “joint venture theory” by showing Steele’s contributions to Fusion GPS’s “opposition research” were part of Perkins Coie’s "workstream" with the Clinton campaign.
Berkowitz said he didn’t understand what Seago, “who either ... has been immunized or will be immunized,” could testify about.
“We understand that she would say she doesn't recall that she even knows Mr. Steele or is able to talk about what he did,” he said. “And so we don't know that they actually are able to get anything in about what Mr. Steele did or didn't do. Certainly, there's no evidence that Mr. Sussmann was aware of what Mr. Steele was doing.”